Re Grace and Repatriation Commission - [2000] AATA 711

DECISION AND REASONS FOR DECISION [2000] AATA 711

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1998/1266

VETERANS' APPEALS DIVISION       )
           Re      SADIE GRACE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal The Hon Justice D F O'Connor, President Mr I R Way, Member Dr P Lynch, Member

Date17 August 2000
PlaceBrisbane

Decision      The Tribunal affirms the decision under review
  ..............................................
  President
VETERANS' AFFAIRS - pension - whether applicant's husband died of prostate cancer which was war-caused - whether animal fat intake during and after service met factor required by Statements of Principle

Veterans' Entitlements Act 1986 (Cth) ss 11, 13, 14, 120(4), 120B(3), 196B(14)

Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Keeley [2000] FCA 532

Instrument No 96 of 1995 as amended by Instrument No 192 of 1996

REASONS FOR DECISION

The Hon Justice D F O'Connor, President Mr I R Way, Member Dr P Lynch, Member

This application is for the review of a decision by the Repatriation Commission (the Commission) under the Veterans' Entitlements Act 1986 (Cth) (the Act) which determined that the death of the applicant's late husband, veteran Vincent Henry Grace, was not war-caused. On 1 May 1998 Mrs Sadie Grace lodged with the Repatriation Commission a claim for war widow's pension. On 13 May 1998 the respondent decided that the death of her husband the veteran was not related to service, a decision affirmed by the Veterans' Review Board (VRB) on 29 October 1998.
The documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T documents) were before the Tribunal, in addition to a witness statement by Mrs Grace, a dietary survey also completed by Mrs Grace, and a dietician's report prepared by Ms Kilworth, a Consultant Dietician-Nutritionist provided by the applicant. The respondent also provided a number of reports, namely:
Dr Justin Kenardy, Background Report: Veterans' Affairs Consultancy (March 1998) (exhibit R1)
Dr Justin Kenardy, Fat Preference, Consumption and Habit (April 2000) and letters from the respondent commissioning these reports (exhibit R2)
Dr Ruth English AO, Comment on Report of Applicants' Nutritionist (April 2000) (exhibit R5)
Dr Ruth English AO, Animal Fat in the Australian Diet Including the Armed Services' Rations in World War 2: Scientific Review for Department of Veterans' Affairs (August 1998) and attachments (exhibit R3)
Dr Ruth English AO, Nutrition Report on Dietary Questionnaires of Veterans (April 2000) (exhibit R4).
Mrs Grace, Dr Kenardy, Dr English and Ms Kilworth gave evidence during the hearing and were cross-examined.
Under section 13 of the Act, the Commonwealth is liable to pay a pension by way of compensation to the dependants of a veteran, where the death of the veteran was "war-caused". A dependant of a deceased veteran, including a widow (section 11), may make a claim to a pension under section 14.
Mr Grace rendered eligible war service in the Australian Army from 20 March 1942 to 31 December 1943. The veteran's service was not operational service, and accordingly section 120(4) of the Act requires the Commission, in making any determination or decision on her application, to decide the matter to its reasonable satisfaction. Section 120B(3) provides in part:
"In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i) a Statement of Principles determined under subsection 196B(3) ...;
...
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service."
The standard of proof required for cases in which the veteran has eligible, as opposed to operational, service is prescribed by section 120(4), (as affected by section 120B) of the Act. The Tribunal must in each case determine to its reasonable satisfaction the question whether the veteran's death was war-caused, applying the civil standard of proof of the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327 at 335.
Where there is a Statement of Principles (SoP) made under section 196B(3) of the Act, the Tribunal must first determine whether, to its reasonable satisfaction, the material before it raises a connection between the veteran's death and his service. Secondly, the Tribunal is required to decide whether the applicable SoP upholds the contention that the veteran's death is, on the balance of probabilities, connected with the veteran's service: section 120B(3)(b). This last question must also be determined to the reasonable satisfaction of the Tribunal.
Mr Grace died on 22 February 1998; the cause of death was recorded "metastatic carcinoma of the prostate". He was diagnosed with the disease by at least April 1992. The relevant SoP in this case is therefore that for Malignant Neoplasm of the Prostate, No 96 of 1995 as amended by No 192 of 1996. This was the SoP in force at the time of the application and is therefore relevant to this review (see Repatriation Commission v Keeley [2000] FCA 532). Instrument No 96 of 1995 as amended by Instrument No 192 of 1996 provides:
"Being of the view that, on sound medical-scientific evidence available to the Repatriation Medical Authority, it is more probable than not that malignant neoplasm of the prostate and death from malignant neoplasm of the prostate can be related to eligible war service … rendered by veterans…, the Repatriation Medical Authority determines, under subsection 196B(3) of the Veteran's Entitlements Act 1986, that 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 that service, is:
(a)increasing animal fat consumption by at least 40% and to at least 70 gm/day for at least 25 years before the clinical onset of malignant neoplasm of the prostate
…"

The relationship to service required by the SoP must be one of the relationships prescribed in section 196B(14) of the Act.
"(14)A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b)       it arose out of, or was attributable to, that service; or
(c)it resulted from an accident that occurred while the person was travelling, while rendering that service but otherwise than in the course of duty, on a journey:
(i)        to a place for the purpose of performing duty; or
(ii)away from a place of duty upon having ceased to perform duty; or
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
(e)in the case of a factor causing, or contributing to, an injury – it resulted from an accident that would not have occurred:
(i)        but for the rendering of that service by the person; or
(ii)but for the changes in the person's environment consequent upon his or her having rendered 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 the changes in the person's environment consequent upon his or her having rendered that service; or
(g)in the case of a factor causing, or contributing to, the death of a person – it was due to an accident that would not have occurred, or to a disease that would not have been contracted:
(i)        but for the rendering of that service by the person; or
(ii)but for the changes in the person's environment consequent upon his or her having rendered that service."

The Tribunal notes that this application for review is one of six applications which came on for hearing by the Tribunal at the same time. The Tribunal is mindful that a large number of such cases is still to be considered. While the application of the law provides a consistent framework for consideration of each case, it is apparent from the Tribunal's consideration of each of the six cases, that each case must be carefully considered on its own merits in determining whether or not the factor in the relevant SoP is satisfied and if so whether or not such post-service consumption of animal fat can be related to war service.
Applicant's submissions
The applicant claimed that the evidence before the Tribunal raises a connection between the death of Mr Grace and his service in the following way. Counsel for the applicant argued that Mr Grace increased his animal fat consumption during his service as a result of consuming a diet he was required to consume during that service and as a result he developed a preference for an increased consumption of animal fat which remained with him after his service. The consumption of such amounts of animal fat can cause malignant neoplasm of the prostate and because Mr Grace died as a result of malignant neoplasm of the prostate, his death was related to his service during the war.
Factual Background
The veteran was born on 11 March 1922 and commenced his eligible war service, which was not operational service, on 20 March 1942 at the age of 20. Mr Grace weighed 129 lb (58.6 kg) at the time of his enlistment, and his occupation was recorded as a labourer. At the time of discharge in December 1943, the veteran weighed 147 lb (66.8 kg).
Pre-war diet
The only information available on the veteran's pre-war diet is the applicant's statement that the veteran's step-mother (with whom he lived from the age of 7) was a "fairly normal cook", who cooked "meat with lots of gravy"; and that the veteran said he was always hungry when growing up (exhibit A1).
The parties have agreed and the Tribunal accepts that if the veteran's pre-war animal fat intake was the same as the average animal fat intake of adult males in Australia (as measured in 1936-1938), it was probably, on average, 122gm/day (exhibit R5).
During service
The veteran's diet during his war service, confined to Queensland, would have included animal fat of 95.8gm/day (exhibit R5), as agreed by the expert dieticians (in her evidence, Ms Kilworth accepted that the figure in her report should be reduced by 10 per cent to 95.8gm/day).
The veteran told the applicant that "the food he got in the Army was terrible" (exhibit A1), and that "they were always hungry", although the applicant commented "but you know, growing I guess". The applicant told the Tribunal that the veteran did not talk much about his service experiences and she did not know what food he had in the Army. However, she knew that "he didn't like the tucker", particularly herrings in tomato sauce and brains.
The dietary survey completed by the applicant (undated) records that the veteran's intake of animal fat after his war service was about 276gm/day (exhibit R5). Dr English and Ms Kilworth initially classified the information supplied in the survey as valid (exhibits A19, R4). However, Dr English subsequently wrote that the information of the veteran's post-war diet was "greatly at variance with the scientifically established and accepted knowledge of human energy requirements, and cannot be considered valid" (exhibit R4). The veteran's weight was not recorded in the years following his discharge.
Having considered the material put forward in relation to this veteran, psychologist Dr Kenardy noted that the veteran had said he could not get enough food in the Army but increased his weight between 1942 and 1943 – "a pretty remarkable change of weight under the circumstances", and he could not answer "one way or another" whether the veteran's war-time diet probably caused any increase in consumption of animal fat after the veteran's war service.
Dr Kenardy expressed the view that it is possible for a young adult to develop a generally increased preference and consumption of animal fat following exposure to elevated levels of animal fat (exhibit R2, p 8). The respondent referred the Tribunal to Dr Kenardy's evidence (contained in his report, exhibit R2, p 7) that the factors that may play a role in fat preference and consumption include availability, prior experience (including in childhood), pleasurable qualities associated with the food, and cognitive factors.
Oral evidence given by Dr Kenardy included the following:
O'GORMAN: "Now, firstly, you agree, don't you, that it is possible that young adults such as these particular veterans could develop a generally increased preference and consequently consumption of fat in certain circumstances as a result of an increase in the consumption of animal fat? ---
KENARDY: Yes, but can I add some provisos to that?
O'GORMAN: Certainly? ---
KENARDY: Fat is generally preferred by people as a food, so exposure to fat is generally associated with preference. There's individual difference, but yes, that's the case. The evidence to date indicates that it isn't necessarily the fat – even though fat may be, in a sensory way, pleasurable to consume, it's not the fat itself that necessarily forms habits, and that's the substance of my second report."
…
O'GORMAN: "You have even gone as far as to say, in your second report, that there is some evidence that fat may in fact have some of the qualities of an addictive substance? ---
KENARDY: Yes"
…
O'GORMAN: "So speaking generally, again before we go to specific veterans, pre-service a veteran has a normal fat intake. On service, the diet that he or she was forced to consume included a higher level of fat intake, and post service, the animal fat intake remained at a higher level. It follows therefore, does it not, that a condition of service, namely, the diet, is certainly material pointing to it being a factor in his increase post-service?---
KENARDY: Yes. I think that the piece that's probably missing there is that rather being forced to consume the fat during the war, he would be actively seeking it.
O'GORMAN: Well, except - ? ---
KENARDY: I mean, you know.
O'GORMAN: Yes, exactly. Well, do you have your second report there. Could I ask you to go to page 8? ---
KENARDY: Sure
O'GORMAN: And in particular, the first full paragraph, you indicate that it's possible that a young adult can develop a generally increased preference and consumption of fat in excessive need following exposures to elevated levels of fat in the diet in the presence of a previously lower consumption of fat? ---
KENARDY: Yes
O'GORMAN: Now, that conclusion fits the scenario to which I've just been taking, does it? ---
KENARDY: Yes, it's possible that that could occur, yes.
O'GORMAN: At least there is material pointing to that? ---
KENARDY: Mm"
…
HANKS: "Going back to the cases that we looked at, can you express any conclusion about whether in each of those cases, the material that you considered assist us in answering the question, namely, does the material point to a connection between each of the veterans' increased fat consumption and the circumstances of that service? ---
KENARDY: The – put me on the spot, yes. I would think it's hard for me to answer definitively that there are causal links. I think that I need more information to do that. I can certainly, as I said before, I – you could say there were possibilities"

And during questioning by Mr Hanks,

KENARDY: "The other thing that I guess I mentioned in the report is that fat, unfortunately, where there is a lot of fat – fat unfortunately tends to lead to over-consumption because the way – one of the hypotheses I should say, is – current hypotheses is that the way that fat tends to get regulated – the consumption of fat tends to get regulated means that people tend to consume more fat before they recognise that they've had enough"

Dr Kenardy agreed in cross-examination that an exposure to an elevated level of fat can possibly lead to an increased preference and consumption of fat. The witness agreed that from a lay person's point of view the following is a fair summary of the particular studies.

Saba et al "Attitudes, habits, sensory and liking expectation as determinants of the consumption of milk" (1998) Food Quality and Preference 9, 31-41, found habit to be significantly related to fatty foods;
Blundell J E and MacDiarmid J I "Fat as a risk factor for over consumption: Satiation, satiety, and patterns of eating" (1997) Journal of the American Dietary Association 97, S63-S69, suggest that exposure to fat leads to increased fat consumption, and in particular, state that fat produces "potent oral stimulation, which facilitates intake";
Warwick Z S and Synowski S J "Effects of food deprivation and maintenance diet composition on fat preference and acceptance in rats" (1999) Physiology and Behaviour 68, 235-239, found that rats maintained on a high-fat diet show a preference for high fat;
Reed D R and Friedman M I "Diet Composition alters the acceptance of fat by rats" (1990) Appetite 14, 219-230 and Reed et al "Shamfeeding of corn oil by rats: Sensory and postingestinal factors" (1990) Physiology and Behaviour 47, 779-781 and Warwick Z S, Schiffman S S and Anderson A I "Relationship of dietary fat content to food preference in young rats" (1990) Physiology and Behaviour 68, 235-239 have found that rats fed on a high-fat diet develop a preference for food with high-fat content and consume more fat than rats fed on a low-fat diet;
Elizabeth D Capaldi has stated that the consumption of a food repeatedly increases preference for that food: in Capaldi E D (ed) Why we eat what we eat: the psychology of eating (American Psychological Association, Washington DC, 1996).

The applicant claimed that Dr Kenardy's evidence was that there was material pointing to the conditions of the veteran's service as playing a role in the increase in their post-war consumption of animal fat in relation to pre-war consumption if one accepts the following sequence of events. Firstly, during service the veteran was required to consume a diet higher in animal fat than he had prior to enlisting, and secondly that his consumption of animal fat post-service was greater than that pre-service. In cross examination Dr Kenardy said that he would require additional information for him to answer definitively that such a link did not exist, and that before he could make such a connection, he would want to see that the veteran was "seeking out fat during the war", and "actively seeking the fat to consume" after the war, "no matter what situation they were in".
In claiming that the veteran's post-service animal fat consumption habits could have been influenced by his war service, the applicant relied on the opinions of Dr Kenardy expressed in his reports (exhibits R1 and R2) that
"it is possible that a person (specifically a young adult) could develop a generally increased preference and consumption of fat in excess of need following exposure to elevated levels of fat in a diet, in the presence of a previously lower consumption of fat" (exhibit R2, p 8)
"… there is some evidence that fat might have some of the qualities of an addictive substance …" (exhibit R2, p 7)
"… it could be also be [sic] concluded from Blundell and MacDiarmid's (1997) proposal that exposure to fat generally leads to increased fat consumption" (exhibit R2, p 6)
The applicant further relied on evidence from Dr Kenardy that:

cognitive factors contribute to high-fat dietary intake (exhibit R2, p 6)
the preference for fat, and hence increased fat intake, should be increased if the reinforcement of the positive sensory impact of the fat is greater than the delayed aversive post-ingestive consequences of consuming fat (exhibit R2, pp 4-5)

fat preference is likely to be difficult to reduce, but can be modified upward (exhibit R2, p 5)
in order to change fat preferences (and consumption) the positive sensory input of the fat would need to be significantly enhanced to counteract the post-ingestive negative feedback (exhibit R1, p 5).

The respondent relied on Dr English's general opinion as to whether exposure to a higher fat diet during war service could contribute to an increase in fat consumption and maintenance of an increased level of consumption over an extended period. She referred to evidence that might support the argument that overexposure to animal fat in service rations might induce a food behavioural change to a diet higher in animal fats (exhibit R3 p 20). However she came to the general conclusion that
"On the basis of the above review and the universal agreement in the literature that many complex factors affect an individual's food patterns, it is considered 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 are contrary to these food consumption patterns. It is proposed that such a link can only be described as tenuous, and unsupported by a reasonable level of evidence."
In exhibit R3, Dr English also stated:
"The argument that the circumstance of service with exposure to service rations induced a food behavioural change to a diet higher in animal fats is supported by evidence linking food preferences to exposure to characteristics of foods, hedonistic characteristics intrinsic to many high fat foods, image of specific foods as comprising proper meals for men and that food selection of women is constrained by their partner's preferences."
The applicant argues that the disagreement between the expert dietician witnesses Dr English and Ms Kilworth relates merely to the reliance that can be placed upon the data in the dietary surveys, in particular difficulties associated with memory and inability to make use of energy data requirements in assessing the responses. The format of the dietary surveys had been agreed upon by both Ms Kilworth and Dr English as being suitable for the use to which it was put, that is, a tool to measure total consumption of animal fats. It was agreed that, in the circumstances, the survey evidence although problematic was the best evidence available.
Dr Kenardy gave evidence and was cross examined during the hearing. Cross examination by the applicant's counsel included the following exchanges:
O'GORMAN: "Now that's again what we know about Mr Grace and I really should ask you a slightly different question here – it's only slightly different – is it probably – I'm allowed to say here – it is probably that his service in the army between March of '42 and December of '43 played a role in the development of a change in his dietary preference and an increase in his consumption of animal fat – assuming that there is such an increase?
KENARDY: Assuming there is such an increase.
O'GORMAN: Well, I think I have to say that because the information about pre-war consumption is thin?
KENARDY: Again, I go back to his statement here. He said he couldn't get enough food in the army which suggests to me he wasn't getting what he wanted rather than being satisfied so the difficulty is that he has increased his weight between '42 and '43 which is a pretty, you know, remarkable change in weight under the circumstances.
O'GORMAN: Yes? --- So that I don't think I could answer that one way or another."

Respondent's submissions

The respondent submitted that, even if the AAT is reasonably satisfied that the veteran's consumption of animal fat increased by 40 per cent following his war service and remained at that higher level for 20 years, the Tribunal cannot be reasonably satisfied that any such increase arose out of or was attributable to the veteran's war service. The bases for this submission were as follows:

(a) if the veteran's pre-war consumption was 122 gm/day, then the veteran's daily consumption of animal fat during his war service was actually 21 per cent lower than that intake for the whole of his war service

(b) the general proposition, that an increased level of dietary animal fat during service could be implicated in a subsequent high level of animal fat consumption can have no application to this case. The connection between the veteran's later consumption of animal fat and his war service must be established as a matter of probabilities. The facts of this veteran's case do not fit the "model" put to Dr Kenardy by the applicant.

The respondent argues that it follows that any increase in the veteran's consumption of animal fat following his war service cannot be "related to service", as required by clause 2 of the SoP. Therefore, the respondent submits, any contention that the veteran's death from prostate cancer was, on the balance of probabilities, connected with the veteran's service is not upheld by the SoP, as required by section 120B(3) of the Act.
Conclusion
The dietary survey was an attempt to retrospectively assess the fat ingestion of veterans over a minimum period of 20 years as stipulated by the SoP relating to carcinoma of the prostate. The initial survey had some 38 questions and by agreement between the representatives of the applicants and respondent the number of questions was reduced by 50 per cent. The surveys were posted to the individual applicants with written instructions on how to manage the process of completing the forms.
The survey results suggested that there was a gross over-estimation of fat ingestion where the energy levels produced by such ingestion were excessive to average energy requirements. Several factors emerged to explain this. It was obvious from the numerous amendments to the detail in the forms submitted during the hearing, that the applicants had considerable difficulty in filling out the forms and in retrospect personal assistance with the answering of the survey was essential to ensure the applicants understood the details of what was being asked and how to give relevant answers to each question.
Both diet experts agreed that there were inherent faults in most retrospective surveys and that this survey had most of the known and publicised flaws. These are discussed in exhibit R3 and will not be repeated here. Professor English in her oral evidence was critical of the survey in that it could not be validated by an analysis of the energy content of the results of the applicants' answers to the survey. Such validation was impossible, as the planning of the survey to which she was a party had not been designed to allow for this validation. Whilst the Tribunal accepts the scientific unreliability of the survey, we are in agreement with the applicant's submission that the numerical values for fat ingestion should be heavily discounted before attempting to compare with estimated average consumption of dietary fat, pre-war and during wartime. It is noteworthy that both dieticians agreed that the national dietary figures also had scientific faults. However flawed, this evidence is the best evidence the Tribunal has before it and based on which it has to make a decision.
The Tribunal considers the requirement of the SoP for precise details of the diets of veterans covering a period of at least 20 years to be collected retrospectively constitutes a near impossible task. Therefore, there should be some revision of the survey to minimise the flaws in the process in future cases relating to prostatic cancer.
The evidence of Dr Kenardy was in the form of two reports and oral evidence. In very general terms the evidence was complex and multifactorial, lacking in scientific fact and not graded in significance. Dr Kenardy's first report discussed fat ingestion and addiction and describes the complexity of the issues arising in this field. They are numerous and ranged from conscious factors, taste (whether salt or sweet), the taste of fat plus flavours, again whether sweet or salty, gender differences, learned behaviour and education. Emotions could either enhance or suppress desire for food. Fat directly delivered to the stomach suppresses desire for fat whereas the physical characteristic of fat tended to make the food more pleasurable to the palate. The conclusion was that the criteria for addiction as outlined in the DSM IV are not adequately met and therefore fat ingestion is more a habit rather than an addiction, but that this was by no means proven.
Dr Kenardy's second report was entitled "Fat Preference, Consumption and Habit". This discussion also reveals a complex and large number of factors, which have both positive and/or negative effects on fat preference and ingestion. There is no evidence that quantifies these effects or their importance. Thus the current state of expert knowledge regarding the mechanisms of fat preference and ingestion is of little assistance to the Tribunal, other than as an indication that to focus on one factor, namely, documentation of an increased fat ingestion, during a period of war service would be a gross over-simplification. This conclusion is supported by Dr Kenardy's oral evidence that almost anything is possible.
Dr Kenardy in his report stated that fat preferences appear to be established in early childhood. However to use this as an excluding factor in these proceedings was considered to be unjustified, as there is no evidence of early childhood diets before the Tribunal and further, it is possible that the veterans were exposed to high fat diets when they were children, producing diet habits which lay dormant and were rekindled by the wartime exposure to fat at periods during their service. It is acknowledged that Dr. Kenardy considered periods of average fat diets would tend to interrupt the causative link to a prior high fat period of ingestion. However, these are only trends, which are not definite, nor quantified.
The Tribunal considers that included in the many processes operative in the determination of dietary preference and ingestion there are factors special to war service. These are physical, psychological and emotional factors. It would be impossible to mention them all as they differ between the three services and they are different for each individual. Some of these factors include separation from normal life for periods of years; periods of panic and fear interspersed with boredom; a lack of privacy; basic camping facilities; dull and repetitive basic cooking and abstinence from and longing for favourite foods. The expert witnesses appear not to have considered these parameters, which impact on veterans in their post-war behaviour. Thus a narrow and obsessive focus on the dubiously accurate levels of fat in the diet as the only factor in causing a link to an excessive fat ingestion after the war is considered inappropriate. It is particularly so in relation to this beneficial legislation, which requires reasonable certainty that a link does not exist before the claim can be rejected.
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 above, it is upon this evidence that the Tribunal must make its decision. Further, the current knowledge is limited as the processes surrounding fat preference and ingestion are both multifactorial and complex, which in turn limits the guidance available to the Tribunal as to which of the factors are the most significant amongst these many processes.
Bearing in mind the dietary surveys do not necessarily reflect an accurate record of post-war animal fat consumption, nevertheless the figures provided by each dietician, as summarised in the final submissions made by the applicant, lead to a conclusion of an increase of post-war fat consumption in excess of that required by the SoP. The Tribunal so finds.
The only evidence available to the Tribunal about the pre-war diet of this veteran is that it was a "normal" diet and we have accepted the agreed average of animal fat consumption of 122gm/day. With respect to his wartime diet, the evidence before the Tribunal points to a decrease in animal fat consumption compared with his pre-war diet. The Tribunal notes that the veteran's weight increased considerably during his service, however, in the absence of any other evidence it would be speculation to infer that his weight increase resulted from an increase in animal fat in his wartime diet.
After careful consideration of all the material before us and the submissions of both parties, we are not satisfied on the probabilities that there was an increase in the veteran's consumption of fat during the war that could be implicated in a post-war high level of animal fat consumption. We are therefore satisfied that the veteran's death was not related to his war service.
The Tribunal affirms the decision under review.
I certify that the 42 (forty two) preceding paragraphs are a true copy of the reasons for the decision herein of her Honour Justice D F O'Connor, President, Mr I R Way and Dr P Lynch, Members.
Signed:         .....................................................................................
  Associate
Date/s of Hearing  8 - 11 and 17 May 2000
Date of Decision  17 August 2000
Counsel for the Applicant        Mr D O'Gorman
Solicitor for the Applicant         Gilshenan & Luton
Counsel for the Respondent    Mr P Hanks QC
Solicitor for the Respondent    Australian Government Solicitor