PETERS and REPATRIATION COMMISSION
[2010] AATA 887
•12 November 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 887
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/4926
VETERANS’ APPEALS DIVISION ) Re DOROTHY PETERS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr Dean Letcher, QC, Senior Member and
Dr I Alexander, Member
Date12 November 2010
PlaceSydney
Decision The decision under review is affirmed.
...................[sgd]...........................
Dean Letcher, QC
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – widow’s pension – whether death related to service – eligible service – malignant neoplasm of the prostate – consumption of animal fat – decision under review affirmed
Veterans’ Entitlements Act 1986 s 196B
Instrument No. 29 of 2005 Statement of Principles concerning Malignant Neoplasm of the Prostate
HG v The Queen (1999) 197 CLR 414
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Re Rhodes and Repatriation Commission [1999] AATA 72
REASONS FOR DECISION
12 November 2010 Mr Dean Letcher, QC, Senior Member
and Dr I Alexander, Member1. The Applicant is the widow of Jack Peters who died of malignant neoplasm of the prostate on 24 March 2002. The Veterans’ Review Board refused her claim for a widow’s pension on 17 July 2007 and she seeks review of that decision by application dated 20 October 2008. Mrs Peters claims that her husband’s disease and subsequent death were related to his military service within Australia from 11 June 1941 to 10 October 1945. That service constituted “eligible service” – meaning that the case requires proof on the balance of probabilities. The Applicant’s case is that the deceased increased his consumption of animal fat substantially, that the increase fell within the terms of Statement of Principles No. 29 of 2005 (“SoP”) and that the increase was related to his military service.
2. Under that Statement, the factor that must as a minimum exist before it can be said that on the balance of probabilities his death was connected with his military service is (relevantly):
5(a)increasing animal fat consumption by at least 40% and to at least 50gm/day, and maintaining these levels for at least ten years within the twenty-five years before the clinical onset of malignant neoplasm of the prostate;.
3. Clause 4 of that Statement stipulates that the relevant factor must be “related to the relevant service rendered”.
4. Section 196B(14) of the Veterans’ Entitlements Act 1986 defines “related to service” in this context to be something that:
…
(b) … arose out of, or was attributable to, that service; or
…
(f) in the case of a factor causing, or contributing to, a disease—it would not have occurred:
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person’s environment consequent upon his or her having rendered that service;
…
5. The test of “related to service” requires that any increase in animal fat consumption described in 5(a) by the deceased would not have occurred but for his service, or but for changes in his situation because of his service or it arose directly from or was caused by his service.
6. In Re Rhodes and Repatriation Commission [1999] AATA 72 the Tribunal held that the factor was not required to be solely related or exclusively related to service stating “it may be one of a number of factors … it just needs to be a contribution in a material degree”. The Tribunal, however, held that “it is necessary for the Tribunal to apply the specific evidence relating to the individual veteran when considering the SoP”.
7. The Applicant’s evidence consisted of her written and oral evidence and the oral evidence of Ms Elizabeth Beavis, a dietician and the report of Mss Beavis and Katz. Mrs Peters’ oral evidence was assisted by reference to letters she had written to the Department of Veterans’ Affairs in July 2007 and to the Veterans’ Review Board in November 2007. The letters signed by her were clearly framed by an advocate using technical terms with which Mrs Peters was not familiar, and also containing statements of fact which she did not support in evidence. Nevertheless, the picture presented by her of Mr Peters’ pre-service diet was of very low animal fat intake and very low caloric value. This picture was accepted by Mss Beavis and Katz and used by them in constructing an expert opinion of Mr Peters’ pre-service diet.
8. The thrust of the Applicant’s evidence was that Mr Peters had a very low fat diet because of poverty in the years before he entered the Army in June 1941. He remained in the Army until 1946 when he joined the NSW Police Force and was stationed in the country for about five years, but then was promoted and moved to Newcastle.
9. Mrs Peters first met Mr Peters in 1941 when she was only 14 years old and he was 21 and was already in Army Service. She had been told a number of things about his diet prior to Army service by family. This was strictly hearsay but admitted given that the Tribunal is not bound to apply the rules of evidence, although the weight to be given such material must depend greatly upon the circumstances. In this case the recollections were fragmented, undetailed as to time and source and a mixture of opinion and fact.
10. Mrs Peters said: “my family had told me things,… my mother and my sister and general other people … his mother was a very plain cook … they weren’t very prosperous as far as food was concerned … I noticed that when he came to church functions … he was ravenous … he [told me] my mother never makes cakes … because she couldn’t afford it … he never complained …”.
11. The reliability and consistency of the Applicant’s evidence are matters for close attention by the Tribunal taking into account (as an expert in Rhodes said):
when information is given by a surrogate for a deceased person concerning that person’s dietary habits, errors, including unintentional elaboration with distortion of memory, may occur.
12. Mrs Peters’ letters contained the following:
The family had a very tight budget and could only purchase the cheapest of foods,
and
My husband had told me that he mainly lived on vegetable soups, rolled oats and rice prepared by his mother.
13. However, Mrs Peters’ evidence differed significantly and she also said she was told by his mother:
Well, they had meat once a week. They had eggs and they basically had soups and the meat was made into a type of stew and things like that.
14. In cross-examination she agreed that she “didn’t know precisely what he ate before he joined the Army” and:
Q: So you were doing your best to …?
A: Show a difference.
15. She agreed it was difficult to give specific answers on quantity and nature of the food “because I was so young at the time… I thought that everybody ate like I ate.”
16. Her description in one letter of a “skinny young man” does not accord with the objective documentary record of his weight, height and activities. Mrs Peters’ recollection and the dieticians’ reconstruction contradict the picture from Army records of a healthy young man well-nourished on entry to the Army. This was after several years as a labourer in heavy industry, having been living in a household of his mother and her two adult sons both earning fulltime labourer’s wages. Whilst in the Army Mr Peters was a PE instructor, amongst other roles, yet gained only 19 lbs weight in his three years’ service before discharge at age 25.
17. The Applicant’s dieticians’ report initially gave an opinion that his “pre war” consumption of saturated animal fat was 16.25 gm/day but this conflicted with the figure in the report appendix of 24.2 gm/day. In examination Ms Beavis’ attention was drawn to the figure of 55.5 gm which represented the total daily fat consumption. Ms Beavis in evidence acknowledged that the SoP was concerned with animal fat consumption (not saturated animal fat) and that she now estimated Mr Peters’ pre-service consumption of fat from animal sources to be about 50 gm/day with total daily intake of 7,655 kilojoules.
18. However, “in retrospect” she believed the kilojoule intake was too low for a man in his situation so without any additional evidence “recalculated it adding in a few more of the available foods in place” but without increasing the amount of animal fat in the diet. However, and in cross-examination, she altered it again to “about 40 grams of animal fat” and “45 grams of fat from animal sources”. She had originally calculated 72.26 gm/day (saturated fat from animal sources) after service but again recalculated that “to about 125 grams of fat from animal sources”. Dr Mann’s opinion was that for the purposes of calculation there was no difference in “saturated facts” and “animal fats”. Ms Beavis differed saying that some animal fat was not saturated but offered little basis for calculation or differentiations. Even if her contention were correct, the difference she suggests is only about 10% and not significant in this case.
19. The changes in Ms Beavis’ calculations and the ill-defined reasons for those changes made it difficult for the Tribunal to conclude that the final opinion of the Applicant’s dietician was based on specialised expert knowledge rather than “a combination of speculation, inference, personal and second-hand views as to the credibility of the [historian], and a process of reasoning which went well beyond the field of expertise” (per Gleeson CJ in HG v The Queen (1999) 197 CLR 414 at 428 referred to by Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 744).
20. Dr David Mann was the highly qualified and experienced consultant dietician called by the Respondent. He arrived at figures of 16.5 gm/day animal fat and 10,911 kilojoules/day pre-service on the evidence of Mrs Peters, but found such figures to be quite inconsistent with the objective bodily measurements and the proved history of Mr Peters. At the time of entry to the Army Mr Peters was a “very healthy normal weight” with a BMI of 22. He believed that it would have been physically impossible for Mr Peters to have had a diet so low in fat and calories, as put forward in the Applicant’s case, yet be so well-nourished and employed as a labourer in heavy industry as he was. We found Dr Mann to be a careful and methodical witness prepared to test his initial impressions and to apply validation criteria to the data. By contrast, Ms Beavis seemed prepared to make arbitrary changes to the data to support assumptions and an outcome and her initial report reflected uncritical acceptance of contradictory information which concerned Dr Mann that an internally inconsistent picture was being presented.
21. We are unable to conclude on the balance of probabilities the likely level of Mr Peters’ animal fat consumption in the pre-service period. It seems likely that during service he consumed the known Army average of about 102 gm/day given his fitness, role as a PE instructor, small weight gain and activity as a detention officer. There is no evidence to the contrary, unlike the evidence accepted in Rhodes, that the deceased’s first exposure to foods high in animal fat was in service and it was on “a consistent and habit forming basis”. In Rhodes the Tribunal found that the veteran developed dietary habits of a large fat intake and that a pattern of high fat intake was established during service. The evidence was that the veteran had Army rations plus “a little bit extra all the time”, he began to eat bacon, eggs, fried bread for breakfast, he had extra food that he and his mates obtained from shopkeepers on Rottnest Island and he had said directly that “his taste for fatty food had started then”.
22. In the case of Mr Peters, his wife “didn’t notice any great change in sizes of clothes for about five years; five or six years” which was when the deceased, who had joined the police force, was promoted and moved from the country to Newcastle where he ceased coming home for lunch. He at first drove a police car and later was driven. The change in sizes coincided with a change to more sedentary duties, eating away from home, city living and increased income some five or six years after leaving military service.
23. The clinical onset of the prostate condition was in 1992 with a recurrence of the disease in 2001 according to the widow but, in either case, we find that Mr Peters’ animal fat consumption reached and stayed around a high level of about 189 gm/day (this figure having been arrived at by Dr Mann after interviewing Mrs Peters about her husband’s post-service diet) for at least 10 years within the 25 years before clinical onset, that is, commencing some time before 1967 and continuing until a doctor advised a radical change of diet in about 1978.
24. We find that while there appears to have been an increase in fat consumption falling within the terms of factor 5(a) of Statement of Principles No. 29 of 2005, we are unable to find on the evidence that the change was related to his military service. There is no evidence that the change would not have occurred but for that service nor, but for changes in his environment, consequent upon the service, nor did it arise directly out of the service. While changes in lifestyle, work duties, finances, age and environment may well have influenced Mr Peters’ diet, we cannot find that the circumstances of military service played any significant part in the increase.
25. The decision under review is affirmed.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Dean Letcher, QC, Senior Member and Dr I Alexander, Member.
Signed: ......[sgd]......................................................................
AssociateDate of Hearing 12 March 2010
Date of Decision 12 November 2010
Counsel for the Applicant Mr M Vincent
Representative of the Applicant Mr A Kemp, Kemp & Co. Lawyers
Counsel for the Respondent Mr G Purcell
Representative of the Respondent Mr N Bunn, Department of Veterans’ Affairs
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