Re Keenan and Repatriation Commission

DECISION AND REASONS FOR DECISION [2000] AATA 707

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1998/87

VETERANS' APPEALS DIVISION       )
           Re      PHYLLIS LILLIAN KEENAN
  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 sets aside the decision under review and in substitution therefore determines that the death of John Robert Keenan was war caused.
  ..............................................
  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 – whether increase in animal fat consumption can be related to relevant service
Veterans' Entitlements Act 1986 (Cth) ss 5B, 6A, 8, 11, 13, 14, 119, 120, 120A, 196B(14)
Statements of Principle No 95 of 1995, No 191 of 1996

Repatriation Commission v Keeley [2000] FCA 532
Byrnes v Repatriation Commission (1993) 177 CLR 564
Bushell vRepatriation Commission (1992) 175 CLR 408
Deledio v Repatriation Commission (1997) 47 ALD 261
Repatriation Commission v Owens (1996) 70 ALJR 904
Repatriation Commission v Webb (1998) 51 ALD 575
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Law (1980) 31 ALR 140
Repatriation Commission v Law (1981) 147 CLR 635

REASONS FOR DECISION

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

This application is for review of a decision by the Repatriation Commission (the Commission) under the Veterans' Entitlements Act 1986 (Cth) (the Act) and dated 12 May 1997 which determined that the death of the applicant's late husband, veteran John Robert Keenan, was not war-caused. The veteran's death on 11 April 1997 was a result of malignant neoplasm of the prostate (also known as prostate cancer), first diagnosed in 1990.
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 Keenan, a dietary survey also completed by Mrs Keenan, and a dietician's report prepared by Ms Kilworth, Consultant Dietician-Nutritionist. A copy of Diary of a Coast Watcher, a journal kept by Mr Keenan from October 1942 to February 1943 was also provided by the applicant. The respondent provided the following reports:
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 Keenan, Dr Kenardy, Dr English and Ms Kilworth gave evidence during the hearing.
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.
The applicant is the widow of a veteran who rendered "operational service" as defined in sections 5B and 6A of the Act, namely continuous full-time service outside Australia during World War II.
Mr Keenan rendered operational service as he served with the Royal Australian Navy from 25 August 1942 to 28 November 1945, including in New Caledonia, the Solomon Islands and New Guinea.
The applicant contends that the veteran's death was a result of a diet which was high in animal fat and related to his service in that he commenced such a diet both during his military service and as a result of that service, and he continued that diet post-war.
The applicant has raised the following hypothesis:

the veteran's death was a result of malignant neoplasm of the prostate;
malignant neoplasm of the prostate can be caused by an increase in animal fat consumption by at least 40 per cent and to at least 70 grams per day for at least 20 years before the clinical onset of the disease;
the veteran consumed animal fat in that amount and over that period of time;
the veteran's habit of consuming such animal fat was related to his service in the armed forces, in that the diet was contributed to by his introduction to armed services food which had a higher fat content than the food he consumed before commencing his service.

On 6 May 1997 the applicant lodged with the respondent a claim for a war widow's pension. On 12 May 1997 the respondent decided the death of the veteran was not related to service. The Veterans' Review Board (VRB) affirmed the respondent's decision on 9 January 1998.
Legislative Scheme
The question whether the death of each veteran who has rendered operational service was war-caused within section 8 of the Act is to be decided by applying the standard of proof prescribed by section 120 of the Act. With regard to the meaning of the expression "war-caused", the relevant part of section 8 provides:
"8 War-caused death
(1) Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c)the death of the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d)in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service; or
(e) the injury or disease from which the veteran died:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease; or
(f)the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused injury or a war-caused disease, as the case may be;
Note: The effect of paragraph (f) is that, if the veteran has died from an injury or disease that has already been determined by the Commission to be war-caused, the death is to be taken to have been war-caused. Accordingly the Commission is not required to relate the death to eligible war service rendered by the veteran and sections 120A and 120B do not apply.
but not otherwise."

Section 120 describes the relevant standard of proof:
"120    Standard of Proof
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
...
(3)In applying subsection (1) ... .in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)       that the injury was a war-caused injury ...
(b)       that the disease was a war-caused disease ... or
(c)       that the death was war-caused ...
as the case may be, 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 injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
(4)Except in making a determination to which subsection (1) … 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.
(5)Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a)       an injury suffered by a person is a war-caused injury ...
(b)       a disease contracted by a person is a war-caused disease ...
(c)       the death of a person is war-caused ... or
(d)a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application."
Other relevant provisions of the Act in respect of the claim are as follows:
"119    Commission not bound by technicalities
(1)       In considering, hearing or determining, and in making a decision in relation to:
(a)       a claim or application;
...
the Commission:
(f)is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just;
(g)shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and
(h)without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i)the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii)the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities."

Section 120A provides that the reasonableness of hypothesis is to be assessed by reference to the relevant Statement of Principles (SoP):
"120AReasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
…
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, 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)a Statement of Principles determined under subsection 196B(2) or (11); or
(b)       a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)        the kind of injury suffered by the person; or
(b)       the kind of disease contracted by the person; or
(c)       the kind of death met by the person;
as the case may be."
Section 120(1) provides that the decision maker must determine that the death of a veteran who rendered operational service was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Only if the decision maker is satisfied beyond reasonable doubt that the material before it does not suggest that section 8 of the Act applies, may the decision maker determine that the death of such a veteran was not "war-caused".
Section 120(3) provides that the decision maker must be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death of a veteran was war-caused if, in the opinion of the decision maker, the material before it does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the veteran. The majority judgment in the Full Court of the Federal Court in Repatriation Commission v Keeley [2000] FCA 532 at paragraph 11 referred to Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571, and stated:
"A reasonable hypothesis which connects the death of a veteran with the circumstances of the particular service of the veteran may be taken to be a theory, proposition, suggestion or postulation which suggests reasonably, although without proof, that some event in, or aspect of, the service rendered by the veteran may be linked to the death of the veteran."

Further, their Honours stated (at paragraph 12):

"A hypothesis is based upon assumptions. The reasonableness of the hypothesis depends upon the reasonableness of the assumptions and of reliance upon those assumptions and known facts to make a connection between the death and the circumstances of service. (See: Bushell v Repatriation Commission (1992) 175 CLR 408 at 414.) If a claimant's case relies upon the raising of a reasonable hypothesis to avoid the Commission being satisfied beyond reasonable doubt that death is not "war-caused" then ss 120A(3) and 196B will apply, if the hypothesis is one addressed by a determination made under s 196B."

A reasonable hypothesis may be shown to be untenable and, therefore, disregarded if the decision maker is satisfied under section 120(1) that the material proves beyond reasonable doubt that the assumed factual basis for the hypothesis did not exist.
If the material before the decision maker creates a reasonable satisfaction that the death was "war-caused", no question can arise under section 120(3) as to whether the decision maker is satisfied beyond reasonable doubt that the death was not "war-caused". From the majority in Keeley (at paragraph 15),
"[I]n respect of a veteran who rendered "operational service", s 8(1)(a) contemplates that the link between the death of the veteran and the war service rendered may be no more than temporal. Where s 8(1)(a) refers to "an occurrence that happened while the veteran was rendering operational service", it is not necessary that the occurrence arose out of, or was attributable to, the "operational service". That is, the connection between the event, or events, and the "operational service" may be coincidental and not causal. Furthermore, the occurrence may be an event with a direct consequence, such as the suffering of injury or contraction of a disease, or it may be an event, or series of events, with a latent or delayed consequence in which the effect of an injury, or onset of a disease, is not manifested until some later date. Irrespective of when the consequence is manifested, the event, or series of events, would be an occurrence that happened while the veteran was rendering "operational service".

The Act provides that a hypothesis is not reasonable for the purpose of section 120(3) unless a Statement of Principles (SoP) upholds the hypothesis.
The relevant SoP is No 95 of 1995 as amended by No 191 of 1996, being the SoP in force at the time the Commission made the decision under review: Repatriation Commission v Keeley [2000] FCA 532. Prior to 9 December 1996 the relevant SoPs did not contain any factor relating to consumption of animal fat, being Instrument No 95 of 1995.
SoP 191 of 1996 contains the following definition of "animal fat":
"'animal fat' means fat contained in or derived from:
(a)beef, veal, pork, mutton or lamb or offal which may be in any form, for example, main dish, sandwich or mixed dish; in preserved meats, ham, frankfurters, sausages, bologna, deli meat items, lard and bacon; and
(b)dairy products, for example: milk, cream, sour cream, sherbet or ice milk, icecream, yogurt, cottage cheese, ricotta cheese, cream cheese, other cheese and butter;"
Following the amendment of Instrument No 95 of 1995 by Instrument No 191 of 1996, the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting death from malignant neoplasm of the prostate with the circumstances of service included, among other things:
"Increasing animal fat consumption by at least 40%, and to at least 70gm/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate"

This is included in factor 1(b) of Instrument No 191 of 1996.

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 factor 1(b) of the relevant SoP is satisfied and if so whether or not such post-service consumption of animal fat can be related to war service.
The Applicant's Submissions

The applicant submits that the hypothesis raised is that the veteran's fatal malignant neoplasm of the prostate can be caused by the veteran's animal fat consumption increasing by at least 40 per cent and to at least 70 gm/day for at least 20 years before the clinical onset of the disease. The claim is that the hypothesis is a reasonable one in that it is consistent with the relevant SoP, Instrument No 191 of 1996, as it includes a history of fat consumption by the veteran in the amount and over the period specified by the factors.
The connection to service claimed is that the veteran increased his animal fat consumption during his service, as a result of consuming the diet he was required to consume during that service. As a result of increasing his animal fat consumption during that service he developed a preference for an increased consumption of animal fat. That preference for consuming an increased amount of animal fat remained with him after his service. As consumption of such amounts of animal fat can cause malignant neoplasm of the prostate, and as the veteran died as a result of malignant neoplasm of the prostate, the death of the veteran was related to his service during WWII.
The applicant submitted that there is sufficient evidence before the Tribunal to establish that the veteran's increase in consumption of animal fat during service played a role in his post-war increase in consumption of animal fat in relation to the veteran's pre-war consumption of animal fat.
The applicant pressed upon the Tribunal the following extract from the judgment of his Honour Justice Heerey in Deledio v Repatriation Commission (1997) 47 ALD 261 at 275-276:
"The hypothesis was consistent with (upheld by) the applicable SoP … The commission's case before the tribunal did not suggest that the hypothesis was otherwise contrary to proved or known scientific facts or obviously fanciful, impossible, incredible, etc. Therefore the applicant cleared the s 120(3) hurdle. The tribunal was then required by s 120(1) to determine the veteran's death was war-caused unless it was satisfied, beyond reasonable doubt, that (a) one or more of the facts (i), (iii) and (iv) was disproved or that (b) some other fact inconsistent with the hypothesis was proved.
The tribunal did not adopt this approach. Instead, it placed the burden of proof upon the applicant. Moreover, the tribunal appears to have misunderstood the applicant's case. It was not to the point that the veteran's army diet was no more fatty than that of the civilian population at large. Rather the question was whether it was disproved beyond reasonable doubt that there was a change for him, compared with his diet in civilian life, which resulted in the habits he adopted thereafter."
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 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 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 or she had prior to enlisting, and secondly that their 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.
The Respondent's submissions
The respondent Commission argued the Tribunal must apply the provisions of the Act by the following process: under section 120(3) the Tribunal must consider the whole of the material before it, and determine whether that material points to a hypothesis connecting the death of the veteran with the circumstances of his particular service. The question is not to be determined by reference to a part of the material before the Tribunal, but the material in its entirety: Repatriation Commission v Owens (1997) 70 ALJR 904; Repatriation Commission v Webb (1998) 51 ALD 575 at 581.
The respondent claimed that the hypothesis must be one "pointed to" by the material, and not merely "left open" by that material, involving more than a mere possibility even though not proved upon the balance of probabilities, relying for support upon the cases of East v Repatriation Commission (1987) 16 FCR 517 at 531-532 and Repatriation Commission v Bey (1997) 79 FCR 364 at 372-373. The respondent acknowledged that it was open to the Tribunal to make certain assumptions, provided that such assumptions are supported or pointed to by the material before it.
Section 120A(3) of the Act poses the question whether the hypothesis raised before the Tribunal contains one or more factors which the Repatriation Medical Authority (RMA) has determined to be minimum which must exist, and be related to the person's service. Consistency, the respondent submitted, is necessary but not sufficient to characterise the hypothesis as reasonable. Drawing on the cases of East v Repatriation Commission (1987) 16 FCR 517 and Repatriation Commission v Bey (1997) 79 FCR 364, the hypothesis must be one that is pointed to by the material before the decision maker and not merely a possibility left open by that material. The respondent argued that while consistency with the SoP will qualify the medical or scientific aspects of the hypothesis as reasonable, consistency will not determine whether the hypothesis as a whole, including its historical aspects, is reasonable.
The Tribunal must also consider whether it is satisfied beyond reasonable doubt that the factual foundation upon which the hypothesis is based is not present: section 120(1), without canvassing the question of onus of proof: Repatriation Commission v Deledio (1998) 83 FCR 82 at 98.
The respondent submitted that the relationship to service required by SoP No 95 of 1995 must be one of the relationships prescribed in subsection 196B(14) of the Act. Further, according to the Explanatory Memorandum accompanying the 1994 amendments (at page 12), subsection 196B(14) "spells out the same liability provisions as are contained in sections 8, 9 and 70" of the Act. The example given by the respondent was that the increase in animal fat consumption and maintenance of consumption of 70gm/day for at least 20 years will be related to a veteran's service where that increase and maintenance arose out of or was attributable to that service: subsection 196B(14)(b) of the Act.
The respondent then argued that the relationship referred to in that paragraph is a causal relationship between war service and the consumption of animal fat – albeit not a necessarily proximate causal relationship: Repatriation Commission v Law (1980) 31 ALR 140 at 150-151, approved by the High Court in Repatriation Commission v Law (1981) 147 CLR 635 at 647-648.
Dietary history
Mr Keenan was born on 27 October 1915 and commenced war service on 25 August 1942, aged 26. He weighed 162 lb on enlistment and pre-war worked as a patrol officer. In November 1945 on discharge he weighed 180 lb.
No information is available on the veteran's pre-war diet or animal fat intake, other than the fact that he grew up on an orchard in Victoria, lived in a boarding house in Sydney and worked in Papua Guinea before enlisting in the Navy in August 1942: exhibit A15. Mrs Keenan married her husband in 1942 and therefore cooked and prepared meals for him for up to 55 years.
It was agreed, and the Tribunal accepts in the absence of actual evidence, that the veteran's pre-war animal fat intake was most likely to be the same as the average animal fat intake of adult males in Australia, as measured in 1936 – 1938, namely 122gm/day: exhibit R5.
During the war, because of the nature of his operational service, Mr Keenan's diet varied considerably. The animal fat content of the ration scale for the area in which he served, the Pacific Islands, varied between 113.2 gm/day (until February 1944) and 131.8gm/day (for the balance of his service). The respondent calculated this as a 7 per cent reduction in animal fat intake for the first period and an 8 per cent increase in intake for the second period. However during his time operating as a coast watcher behind enemy lines, Mr Keenan's diet appears to have been low in animal fat (exhibit A15) and then during a period of four months, included additional potatoes and steak. For other periods, Mr Keenan adopted the diet of the United States forces to which he was attached as a liaison officer. The respondent submitted that no information is available on the level of animal fat in the United States forces' diet, however Ms Kilworth gave evidence that "the fat content of the diet would have increased markedly" (exhibit A23). The applicant said that her husband "became a meat eater" as a result of serving with the United States forces.
The dietary survey for Mr Keenan completed by the applicant on 11 September 1999 (exhibit A16) records that the animal fat intake after service was about 380 gm/day (exhibit R5). According to the letter accompanying the survey, the high fat diet was consumed during a period of 17 years, from 1960 to 1977. In the course of the hearing, the applicant's counsel did describe the information in the survey as unreliable. In oral evidence however, the applicant said that the veteran's high fat diet was particularly when he was travelling away from home for his employment between 1960 and 1977. She said the veteran had normal family servings of food at home during this period. However he would revert to rich food dietary habits acquired as a result of his war service with US forces when he was away from home. She told the Tribunal that the veteran travelled a lot in his job, staying at motels where he consumed fried food three times a day. She said that the veteran liked big steaks with chips and eggs three times a day, would always eat cream when he could get it, ate cheese every night, was a very liberal user of butter, was a great chocolate eater and would eat as much ice cream as he could get. She also told the Tribunal that she made her own biscuits using butter and there was always a plentiful supply of these at home.
The respondent submitted that as the data upon which the dieticians calculated fat intake was unreliable, the Tribunal does not have before it the benefit of any estimate of volume of animal fat in the veteran's diet after his war service, or in the period in which it is said that his animal fat consumption increased.

The respondent further submitted that:

During the period 1946 to 1954, the veteran lived in Papua New Guinea (apart from 10 months in the United Kingdom) where he worked as a patrol officer and ate a combination of local fresh fruit and vegetables, Navy rations and meat supplied by trading companies, and that the evidence does not suggest that the veteran's intake of animal fat in this period was higher than his pre-service diet;
From approximately 1954 to 1960, the veteran lived in Sydney where his wife was responsible for his diet, and the evidence does not suggest that the veteran's intake of animal fat in this period was higher than pre- service; and
The veteran's weight was recorded as 92 kg (202 lb) in 1972.

Dr Kenardy's evidence in relation to Mr Keenan was that it was certainly possible that the veteran had over-consumed during his war service, in reaction to periods of dietary restriction as a coast watcher. Dr Kenardy noted the significant gap in time between the veteran's war service and his increased consumption of fat. In Dr Kenardy's opinion, any acquired habit of consuming higher volumes of animal fat would have been extinguished by the gap in time. Evidence given in cross examination from Dr Kenardy about veteran Keenan included the following:
O'GORMAN "Then he has this huge fat intake. His service diet could play a part in that, couldn't it? ---
KENARDY I would say that the proximal influences would be much more likely to be affecting his diet intake. So I would be pointing the finger towards the wife rather than towards the service. I mean, unfortunately, that is what I would be doing. And that the service, I think, would have very little if any impact at all."
O'GORMAN "Well, you say, the more likely, but my question was could it have played a part, just taking it at that step first? ---
KENARDY Well, you know, anything is possible. But I would say that under the circumstances, you know, I would be saying no. It's so long, it is so long for that to have maintained, such a long time. It would be more likely that it would actually reduce his fat preference rather than increase it. I mean, he's eating a fairly – in that period, he's probably eating a fairly low-fat or at least moderate fat diet."
The respondent submitted that the veteran's experiences between 1942 and 1945 cannot be implicated in his diet some fifteen years later, and that the return to a normal diet including fresh fruit, vegetables and meat broke any nexus that might otherwise have existed between a war service-related increase in animal fat and the veteran's intake of animal fat between 1960 and 1977. That is, any increase in the veteran's consumption of animal fat between 1960 and 1977 cannot be "related to service" as required by the SoP.
In addition, the respondent submitted that any hypothesis about the veteran's consumption of animal fat pointed to by the material before the Tribunal is not upheld by the SoP because if the assumption is made that the veteran's fat intake between 1960 and 1977 was 40 per cent higher than his intake before 1960, it is clear that the veteran did not maintain that higher intake of animal fat for the 20 years required by paragraph 1(b) of the SoP.
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, however flawed, this evidence is the best evidence the Tribunal has before it and it is on this evidence that 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 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 earlier, it is on this evidence 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.
This veteran had, by any measure, an extraordinary period of operational service. Dietary change, either by deprivation and almost starvation, and excess, when a liaison officer with the US troops, was a significant factor in this service. There is no evidence of pre-war diet and we have accepted the agreed average for comparison but post-war there is evidence that the veteran craved and sought when he could get it, the "American diet" high in animal fat to which he was introduced during the war. Although, as Dr Kenardy says, one might expect that his life, for a significant period after the war, separated him from these opportunities he adopted this diet wherever he could.
We are satisfied that he was affected by his war experiences and his adoption of a post-WWII high fat diet, when free to do so, was related to these experiences. We also consider the persistence and intensity of this veteran's desire for rich fatty foods was of such a degree that to postulate his ingestion of above average fat was restricted to the better documented seventeen years in Tamworth would be unreasonable. The applicant's evidence as to her husband's diet when he was residing with her under her supervision indicates that his usual diet was also reasonably high in fat.
While the veteran's post-war dietary history suffers from a lack of exact recall because of the passage of time and other difficulties as outlined above, nevertheless we are satisfied, after careful consideration of all the material before us and the submissions made by both parties, that the necessary factor in paragraph 1(b) of the relevant SoP, namely "increasing animal fat consumption by at least 40 per cent, and to at least 70gm/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate", has been met.
We cannot be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the veteran's death was war caused. We therefore find that the veteran's death was war-caused.
The Tribunal sets aside the decision under review and in substitution therefore determines that the death of John Robert Keenan was war caused.
I certify that the 64 (sixty four) 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

[2000] AATA 707

17 August 2000

Key Legal Topics

Areas of Law

Administrative Law

Legal Concepts

Jurisdiction

Natural Justice & Procedural Fairness

Admissibility of Evidence

Expert Evidence

Retrospective Assessment