Powell and Repatriation Commission
[2005] AATA 1309
•23 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1309
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1998/546
VETERANS APPEALS DIVISION ) Re MAVIS JOYCE POWELL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President Don Muller Date23 December 2005
PlaceBrisbane
Decision The Tribunal affirms the decision to reject the claim for a 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 – death not related to service – decision affirmed
Veterans’ Entitlements Act 1986: ss.5C, 7, 8, 13, 120, 120B
REASONS FOR DECISION
Deputy President Don Muller 1.Mavis Joyce Powell, the applicant, now deceased, claimed a widows’ pension pursuant to section 13(1)(a) of the Veterans’ Entitlements Act 1986 (the VEA).
2.Mrs. Powell claimed that her late husband, Donald William Powell, died from the effects of a war-caused disease, namely prostate cancer.
3.The elements of Mrs. Powell’s claim were:
(a)Donald William Powell died from the effects of prostate cancer.
(b)For many years prior to his death from prostate cancer, Mr. Powell 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. Powell’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. Powell’s death from prostate cancer was related to his RAAF service.
4.Mrs. Powell’s claim was 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. Powell sought a review of that decision.
Material Placed Before the Tribunal
7.The following matters are not in dispute and the Tribunal finds:
(a)Donald William Powell was born at Narrogin, Western Australia on 11 March 1924.
(b)He enlisted in the RAAF on 28 April 1942.
(c)He served as an aircraft electrician and achieved the rank of Leading Aircraftsman.
(d)He served in the RAAF for over 4 years and was discharged on 11 June 1946.
(e)He was posted to the following Bases:
· Millingimbi (Northern Territory) – 19.1.44 to 6.9.44
· Sydney – 20.9.44 to 11.6.46
(f)He married Mavis Joyce Powell on 11 November 1944.
(g)He was first treated for prostate cancer in April 1991.
(h)He died on 3 May 1997. The cause of death was metastatic prostate cancer – 6 years.
(i)He was a “veteran” within the meaning of that term in section 5C(1) of the VEA.
(j)He rendered eligible war service from 28 April 1942 to 11 June 1946.
8.Mrs. Powell did not provide a written statement nor give oral evidence at the hearing. However, she provided statements to the expert dieticians about her late husband’s diet. She made the following points (among others):
(a)She had no knowledge of Mr. Powell’s eating pattern prior to his World War II service. He originally came from Western Australia and did not settle in Queensland until after his World War II service.
(b)Mr. Powell was 184cm tall. He was “big but not obese”.
(c)After his discharge, Mr. Powell worked as a motor mechanic – eventually owning his own business as a mobile mechanic.
(d)Mrs. Powell had no knowledge of what Mr. Powell ate while he was in the RAAF.
(e)For the first ten years of their marriage the Powells lived with Mrs. Powell’s mother.
(f)During the first ten years of their marriage Mrs. Powell’s mother did most of the domestic tasks including cooking. She cooked a lot of roasts and fried food.
(g)Thereafter, Mrs. Powell cooked for her husband until his death.
(h)Mr. Powell had a good/average appetite.
(i)Mrs. Powell did not notice that Mr. Powell had any particular food preference.
(j)A “normal” daily eating pattern for Mr. Powell included the following food:
BreakfastPorridge or Weetbix or Cornflakes (plate with milk).
2 slices of bacon (fried).
2 fried eggs.
2 Slices of bread with butter and marmalade/jam.
1 cup of coffee or tea with milk or a glass of milk.
Mid Morning Mug of coffee or tea with milk.
Fruit cake (2 slices) and biscuits or a glass of milk.
LunchCold meat silverside or ham.
Salad with mayonnaise.
2 slices of bread and butter with honey or jam.
Tea or coffee with milk.
Sometimes Ice-cream or custard with fruit.
Mid Afternoon Tea or coffee with milk
4 biscuits and a glass of milk.
DinnerSteak or Lamb Chops or Mince (roast once a week)
With 3 vegetables
2 slices of bread and butter
Tea or coffee with milk
Late Evening Tea or coffee with milk or a glass of milk with 4 biscuits.
(k)Mr. Powell would eat the most visible fat on the meat.
(l)Butter and vegetable oil was used for frying or roasting the meat and vegetables. Sunbeam Canola oil was the brand that Mrs. Powell used.
(m)They would eat roast vegetables once a week. They would normally be roasted or boiled and butter would always be added to the top of the vegetables. She always made gravy to top on meat and vegetables.
(n)Butter was always used on bread. It was also used to bake cakes, biscuits and pies at home.
(o)Dessert usually included custard, cream and/or ice cream.
(p)The Powells would have fish and chips and pizza once a week.
Legislative Framework
9.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.
10.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.
11.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.
12.The standard of proof in the case of eligible service which is not operational service is contained in s.120(4) of the VEA. It provides:
“(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note:This subsection is affected by section 120B.”
13.Section 120B provides that, for the purposes of subsection 120(4), to be reasonably satisfied that the death of a person was war-caused the material must raise a connection between the death of the person and some particular service rendered by the person and there is in force a SoP that upholds the contention.
14.In this case the relevant SoP is No. 29 of 2005 and the relevant parts 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 exist before it can be said that,, on the balance of probabilities, malignant neoplasm of the prostate or death from malignant neoplasm of the prostate is connected with the circumstances of a person’s relevant service is:
….
(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.
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.”
Consideration of the Material Placed before the Tribunal
15. There is no evidence as to what Mr. Powell ate prior to his service in the RAAF. He probably ate about the same as the average adult male which, according to a 1936-38 Australian nutrition survey, included about 122 to 126 gm of animal fat per day.
16. There is no specific evidence as to what Mr. Powell ate while on service in the RAAF. The ration packs, during his service, contained animal fat in the amount of 102.1gms/day in the tropics, and 107.7 gms/day in the southern states.
17. There is no evidence that Mr. Powell particularly enjoyed the diet provided by the ration packs. They probably contained less animal fat per day than his pre-service diet.
18. The material placed before the Tribunal indicates that Mr. Powell had not developed any particular food preference as a result of his RAAF service. For the first ten years after his service he ate what his mother-in-law put in front of him. Thereafter he ate what his wife put in front of him.
19. It is probable that Mr. Powell’s post war diet contained more animal fat per day than his pre-service diet but if it did it had nothing whatsoever to do with the food he ate whilst he served in the RAAF. His post war diet was not connected in any way with any aspect of his RAAF service.
20. The death of Mr. Powell has not been shown to my reasonable satisfaction to be connected with the circumstances of his relevant service.
21. The decision to reject the applicant’s claim for a widows pension is affirmed.
I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .....................................................................................
R. Link, AssociateDate/s of Hearing 14,21.3.05; 8.4.05; 10,11,12.5.05;
20,22.6.05; 30.9.05Date of Decision 23 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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