Rogalsky and Repatriation Commission

[2003] AATA 780

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 780

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No. N2001/301

VETERANS’ APPEALS  DIVISION		)
Re		KATHERINE JOYCE ROGALSKY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Ms G Ettinger – Senior Member

Mr S   Webb   -  Member

Date              11 August 2003

PlaceSydney

Decision The decision under review is affirmed.

[Sgd] Ms G Ettinger

Senior Member

Catchwords

VETERANS’ AFFAIRS – pension – whether applicant's husband died of prostate cancer  - whether war-caused – whether animal fat intake during and after service met factor required by RMA Statements of Principles – decision affirmed.

Legislation

Veterans' Entitlements Act 1986 (Cth) sections 5B, 6A, 8, 11, 13, 14, 119, 120, 120A, 196B(14)

Repatriation Medical Authority Statement of Principles Instrument No. 84 of 1999 as amended by Instrument No. 69 of 2002

Case Law

Benjamin v Repatriation Commission [2001] FCA 1879
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Deledio v Repatriation Commission (1997) 47 ALD 261
Repatriation Commission v Keeley [2000] FCA 532
Repatriation Commission v Deledio (1998) 83 FCR 82
Mason and Repatriation Commission [2002] AATA 1329
Re Fitzsimmons and Repatriation Commission [2001] AATA 477
Keenan and Repatriation Commission [2000] AATA 707

Treloar v Australian Telecommunications Commission (1990) 26 FCR 316

East v Repatriation Commission (1987) 16 FCR 517

Re Dell and Repatriation Commission (1986) 9 ALD 596

Repatriation Commission v Bey (1997) 79 FCR 364

REASONS FOR DECISION

11 August 2003

Ms G Ettinger - Senior Member

  Mr S Webb - Member  

1.      This application before the Administrative Appeals Tribunal (“the Tribunal”) was for review of a decision by the Repatriation Commission (the Commission) dated 3 May 2000 (T9) under the Veterans' Entitlements Act 1986 (Cth) (“the Act”) which determined that the death of the Applicant’s late husband, the Veteran Mr Oscar Rogalsky, was not war-caused. This decision was affirmed by the Veterans’ Review Board on 9 February 2001 (T12).

2.      The Veteran, who rendered operational service from 17 June 1940 to 27 October 1945, died on 12 June 1999 as a result of disseminated malignancy of unknown primary. The death certificate at T6/16 indicated as follows:

“(I)       Disseminated malignancy of unknown primary      3 months

(II)      Sepsis  24 hours

Disseminated intravascular coagulation 24 hours”

3.      Mrs Rogalsky was represented by Ms J Buchanan and Ms A Toliopoulos of the Legal Aid Commission, and the Respondent Repatriation Commission by its advocate Mr J Marsh.

ISSUES BEFORE THE TRIBUNAL

4. The issue before the Tribunal was whether Mr Rogalsky’s death was war-caused pursuant to section 8 of the Veterans’ Entitlement’s Act 1986.

5.      Mrs Rogalsky stated in her application to the Tribunal dated 5 March 2000 as follows: “I contend that my late husband’s death is war caused. Factor 5(c) of SoP No.84 of 1999 has not been investigated.”

LEGISLATIVE SCHEME

6.      Mr Rogalsky rendered operational service as he served with the Australian Army (“the Army”) in World War II (“the war”) from 17 June 1940 - 27 October 1945.

7. The question whether the death of each veteran who has rendered operational service was war-caused pursuant to section 8 of the Act is decided by applying the standard of proof prescribed by section 120 of the Act. The standard of proof so far as the claimed relationship between the Veteran’s death and his service is concerned, is that of the reasonable hypothesis, applying the relevant Statements of Principle, and sections 120(1) and 120(3) of the Act.

8. Pursuant to 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 of the Act.

9. The standard of proof so far as diagnosis is concerned, is the civil standard of proof pursuant to section 120(4) of the Act (Benjamin v Repatriation Commission [2001] FCA 1879, and Repatriation Commission v Gosewinckel (1999) 59 ALD 690).

10.     The Tribunal noted the submissions of the parties at the commencement of the Hearing regarding the primary cause of death of Mr Rogalsky, and whether the “disseminated malignancy of unknown primary” as stated on the Death Certificate (T6), meant that there was no SoP available to decide this case.

11.     Ms Buchanan submitted that the Applicant accepted the cause of Mr Rogalsky’s death as stated on the death certificate, namely “disseminated malignancy of unknown primary”. She submitted however that the hypothesis raised was that as a result of Mr Rogalsky’s prostate cancer in 1987, he had bladder neck incontinence which led to urinary tract infection, and ultimately death. The Tribunal noted that were that to be accepted, the SoP Instrument No. 84 of 1999 as amended by Instrument No. 69 of 2002 would apply.

12.     Ms Buchanan submitted in the alternative, that she would be satisfied to have the Tribunal find that the reasonable hypothesis argument could be made out on Mr Rogalsky’s behalf, applying Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564.

13.     Mr Marsh initially submitted that the link between Mr Rogalsky’s prostate cancer and service was tenuous, and also referred to Professor Levi’s report (Exhibit R5), where Professor Levi had opined that as a result of investigations and PSA tests in December 1998 and April 1999, it was most unlikely that Mr Rogalsky’s prostate cancer was an immediate factor in his subsequent death.

14.     However, the Tribunal noted that when the written submissions were made, the Respondent conceded as follows at paragraph 5 of the Respondent’s Closing Submissions:

“Although not specifically stated in the formal certification of death (T documents, f.16) it is common ground between the parties that adenocarcinoma of the prostate materially contributed to the late veteran’s death. The clinical course of events leading to death is set forth in the report of Professor Levi. (Exhibit #R5, p.4).”

15.     Mr Marsh also submitted that “although there were other conditions that contributed to the veteran’s death the applicant relies solely on carcinoma of the prostate to establish a causal relationship between service and death.” The Respondent submitted that no other hypothesis was raised by the material suggesting any alternative means of connecting the veteran’s death to his service.

16.     Accordingly, the Tribunal proceeded to determine the matter on the basis of the application of the principles in Deledio v Repatriation Commission (1997) 47 ALD 261 which followed the "reasonableness" test approved in Byrnes v Repatriation Commission (supra), and approved in Repatriation Commission v Deledio (supra).

17.     The Tribunal was mindful that in applying the SoP, 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 Factor 5(c) of Instrument No.84 of 1999.  Factor 5(c) is as follows:

“5(c) 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;”

18.     Animal fat is defined as follows in Instrument No.84 of 1999:

“ ‘animal fat’ means fat contained in or derived from meat, other flesh or offal from animals (including birds), and dairy products;”

19.     The definition has been revised in Instrument No. 69 of 2002 as follows:

“ ‘animal fat’ means fat contained in or derived from:

(i)meat, other flesh or offal from animals (including birds but excluding seafood),

(ii)       dairy products, or

(iii)      eggs from birds.”

20.     The parties agreed that should the application be successful, the date of effect would be 25 April 2000.

21. 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."

22. 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.”

23. 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.”

24. 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.”

25. Section 120(1) of the Act 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".

26. Section 120(3) of the Act 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 (supra) 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.”

27. A reasonable hypothesis may be shown to be untenable and, therefore, disregarded if the decisionmaker is satisfied under section 120(1) that the material proves beyond reasonable doubt that the assumed factual basis for the hypothesis did not exist.

28.     If the material before the decisionmaker creates 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 (supra) (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".

EVIDENCE BEFORE THE TRIBUNAL 

29.     Mrs Rogalsky, the Applicant, and dietitians, Dr D Volker and Mr W Friderich gave oral evidence during the Hearing.

30. Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“the T-documents”) were before the Tribunal, and the following other documents:

ITEM	DATE	EXHIBIT NUMBER
Statement from Katherine Rogalsky	4 July 2002	Exhibit  A1
Report from Dr Dianne Volker	29 August 2001	Exhibit  A2
Report from Dr Dianne Volker	3 July 2002	Exhibit  A3
Report from Dr Dianne Volker	20 December 2002	Exhibit  A4
Documents prepared for the Tribunal pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (T1 – T14)	Exhibit  R1
Clinical notes from Royal North Shore Hospital	Exhibit  R2
Clinical notes from Northern Sydney Health – Royal North Shore Hospital	Exhibit  R3
Medical Notes from Dr J Alexander	Exhibit  R4
Report from Professor John Levi	16 November 2001	Exhibit  R5
Scientific Review entitled “Animal Fat in the Australian Diet” by Dr Ruth English	August 1998	Exhibit  R6
Frequency distribution of total daily intake of fat (grams) for adult males in Australia 1936 –1938 by Advisory Council on Nutrition	Exhibit  R7
Report from Dr Willi Friderich	29 October 2001	Exhibit  R8
Report from Dr Willi Friderich	17 March 2003	Exhibit  R9
Report from Dr Ruth English	23 August 2002	Exhibit  R10
Report from Dr Ruth English	20 November 2002	Exhibit  R11
Dietary Survey	Exhibit  R12

31.     Other documents which the Tribunal accepted into evidence and were lodged after the Hearing are as follows:

·     Applicant’s Closing Submissions  2 August 2002

·     Applicant’s Amended Closing Submissions            17 April 2003

·     Respondent’s Closing Submissions  1 October 2002

·     Respondent’s Amended Closing Submissions       15 April 2002

mrs catherine joyce rogalsky- the applicant

32.     Mrs Rogalsky whose date of birth is 13 January 1920, and whose statement dated 4 July 2002, was Exhibit A1 before the Tribunal, gave oral evidence.  In her statement she said that she served in the Army during World War II, met her husband in 1942, and married him in 1943. She said that she had no knowledge of his diet before service, but it became evident from her oral evidence that Mrs Rogalsky did know something of his family.  She also told the Tribunal that after Mr Rogalsky’s discharge in 1945, she cooked all his meals, including breakfast, lunch and dinner, and described the typical Australian meals of the time, which she said that his family had also eaten. Mrs Rogalsky also told the Tribunal that her husband liked morning and afternoon tea, and particularly liked cheese, a habit he acquired during the war.

33.     Mrs Rogalsky stated that she had seen Mr Friderich’s report, and considered his comments regarding her husband’s milk consumption inaccurate. She said that her husband drank milk and milkshakes, had milk in his coffee, and liked tripe with onions and white sauce (containing milk), and milk pudding.  She said that his liking for these foods continued for the whole time they were married (from 1943), and said that she cooked all the food. She said that her husband had a good appetite, was easy  to look after, and ate whatever she gave him.

34.     Mrs Rogalsky also pointed to what she considered other inaccuracies in Mr Friderich’s report, saying that he had written that her husband did not like cream, for example. She corrected that to state that he had not liked cream cakes, but that he had cream with his fruit salad. 

35.     Mrs Rogalsky said that she had not known Mr Rogalsky pre-war, and did not know about his diet at that time, apart from what she had heard from his sister, Mrs Ferguson.  She said that she knew the family had a cow at Springwood, and would have drunk full cream milk there.

36.     Mrs Rogalsky recounted how in later years she was concerned about cholesterol, and that although her husband had a cooked breakfast in the Army, she no longer provided it. The Applicant said that Mr Friderich reported the push to reduce fat came in the immediate post-war period, but that she remembered it was only in approximately 1965.

37.     The Applicant referred to T3/9, saying that her husband had increased 21 lbs (9.5 kgs) in weight when he returned from the war. She suggested he had eaten fatty foods during the war. Mrs Rogalsky said that her husband maintained his weight for all the time after discharge until right at the time when he developed prostate cancer.  At that time, although the family did not know he had cancer, he became very frail and thin, she said. She said he had been the envy of the family because he could eat anything he wanted without putting on weight.

38.     When questioned about Mr Rogalsky’s cheese intake, of which much was made at the Hearing, the Applicant said that cheese had been freely available during the war. She said she knew because she too had been in the Army, and that after he returned from the War, they had cheese all the time at home. The Applicant said that her husband would come in and help himself to biscuits, bread, jam, peanut butter and cheese anytime he came in.  Mrs Rogalsky said that in the Army they were well fed, ample food was available, and a lot of it was fried. As well, she said, there was shepherd’s pie, stew, sausages fried with gravy, bully beef and cold corned beef.  Mrs Rogalsky said that she knew from her sister-in-law that pre-war, her husband’s family ate well, and had meat, eggs and vegetables available, but that cheese was a manufactured product, and it was unlikely that they had access to it.  Later on in her evidence, Mrs Rogalsky did accept that her husband would have eaten cheese pre-war.

39.     Mrs Rogalsky told the Tribunal that her husband had been a runner, a member of the Surf Club, a beach sprinter and that he played golf.

40.     Mrs Rogalsky was referred to paragraph 17 of Exhibit A1, where what she had said was inconsistent with Mr Friderich’s report. He had stated, on the basis of interviewing Mrs Rogalsky, that Mr Rogalsky did not have morning tea. She said in her oral evidence, that: “David ate morning and afternoon tea. … we always had a cup of tea or some coffee and a biscuit, or a bit of cake or something like that. He didn’t have to worry about his fat – his weight.”   

dr d volker – dietitian

41.     Dr Volker whose reports were before the Tribunal as Exhibits A2 (dated 29 August 2001), and A3 (3 July 2002), and A4 (20 December 2002), gave oral evidence. The document at Exhibit A3 was headed “Comparison of Dietary Assessment”.

42.     Noting that methodology was in contention in these proceedings, Dr Volker wrote at Exhibit A4, which was a report commenting on Dr Ruth English’s reports, and animal fat figures taking into account adjusted figures as a result of the amendment to the SoP which now included “eggs from birds”:

“As a research scientist, responsible for clinical trials, I am aware of the problems in dietary methodology and usually validate all my dietary assessments with biomarker measurements. In this instance, biomarker validation is not a possibility, however my extensive experience is of considerable value in endeavouring to ‘tease out’ eating patterns from surrogate reporters.”

43.     In reply to questions in cross-examination, Dr Volker acknowledged Dr English’s pre-eminence in the area of dietetics.

44.     Mr Marsh took Dr Volker through her report and the revised figures for “Comparison of Dietary Assessment” at Exhibit A3. Dr Volker said that in the first report she had measured saturated fats and not animal fats, and the results therefore provided a higher figure. Dr Volker told the Tribunal that in Exhibit A3 she provided a “Corrected Fat Table” due to an error she had perceived, and to put the information into a table format for the assistance of the Members of the Tribunal.

45.     Dr Volker told the Tribunal that her information about Mr Rogalsky’s pre-war diet came from interviews with his sister, Mrs Ferguson, and that this was quite “sketchy”. She said she preferred the evidence of Mrs Rogalsky. At page 3 of Exhibit A2, Dr Volker said that the evidence of the Applicant corroborated that of Mrs Ferguson, but agreed in cross-examination that retrospective food habits were hard to assess. 

46.     Dr Volker agreed that even though she had assessed pre-war diet, she had no direct knowledge of what Mr Rogalsky ate when he was at boarding school at Barker College, for example. Dr Volker also told the Tribunal that she disagreed with Mr Friderich’s assessment of boarding school food. She said that she understood for the period pre and just post-war, the diet was high in carbohydrates because meat was scarce, and rationed.

47.     Dr Volker told the Tribunal that Mr Rogalsky’s weight gain of 9.5 kgs over the period of his service was due to a high fat content in his food, and that he had developed a liking for cheese during service. Dr Volker told the Tribunal that she obtained the summary of meal patterns during war service from the report of Dr English, and commented on the different diets provided to Australian service people in different parts of the world, noting that people in tropical Australia consumed a slightly less, a lower figure for animal fat.

48.     When questioned about her report, Exhibit A3, Dr Volker explained how she had arrived at the calculations by assessing the type and quality of food which came into the household, the meals prepared, the activity factors and energy, and the estimation of the fat content.  She said that she had assessed Mr Rogalsky’s pre and post- retirement diet.

49.     Dr Volker also told the Tribunal that on discharge, Mr Rogalsky continued working, and ate similar foods as when he was in the Army. She was aware of his onset of illness and the consequent weight loss. When questioned about the Veteran’s cheese consumption, Dr Volker said that it was only one aspect of animal fat to be taken into account, but that cheese had between 33 and 35 percent fat and was easily cut thickly. She agreed that if Mr Rogalsky’s weight did not change until he became ill, then it was likely he was eating the same type and quantity of food before and after discharge.

50.     When asked whether she agreed with Mr Friderich’s methodology as expressed in his report at Exhibit R8, Dr Volker, replied:

“Well I don’t agree with it. I think dietary assessment, retrospective dietary assessment is very very difficult and prone to error and the way to overcome that error is to do a food frequency questionnaire to ascertain the frequency with which these foods were eaten over a period of time and then a food history that gives you the types of foods and then develop a picture from that and essentially that method is the one that’s recommended by Dr Ruth English and it is a method that I use in my work in research that I do in dietary assessment.” 

51.     Dr Volker also said that she did not agree with Mr Friderich’s estimates of activity factors.

52.     Dr Volker agreed in cross-examination that although she had stated in her report that Mr Rogalsky’s increase in post-service consumption of animal fat was causally related to circumstances of his service, based on habits formed during service, she did not know actually about the Veteran’s service diet.

53.     Dr Volker was asked, and replied to a large number of questions about Mr Rogalsky’s fat and cheese intake in her cross-examination.

mr w friderich – dietitian

54.     Mr Friderich whose reports dated 29 October 2001 and 17 March 2003 were Exhibits R8 and R9 before the Tribunal, gave oral evidence.  In his report at Exhibit R9, Mr Friderich commented on the methodology he used, and on Dr English’s work. He stated that he agreed with Dr English that a 9.5 kg weight gain during Mr Rogalsky’s period of service meant he consumed an additional 40 kcal per day or the equivalent of 4.4 g of fat per day. He stated that he shared the concerns of Dr English with regard to the validity of the reported diet by surrogates, Mrs Rogalsky and the Veteran’s sister, Mrs Ferguson. He commented further that body weight was a strong physiological indicator of energy consumption when activity factors were able to be determined, noting that Mr Rogalsky was always below, or within a healthy weight range.

55.     Mr Friderich said that he compiled a report based on information provided for the period both before (for the Springwood and then Turramurra periods), and after Mr Rogalsky’s enlistment. Mr Friderich had also made inquiries with regard to the period of Mr Rogalsky’s boarding at Barker College. As to the Barker College period, Mr Friderich said he was unable to obtain independent information, and hence relied on the average intake for the Australian population based on Dr English’s report. Mr Friderich also stated that it was difficult to obtain information about the pre-enlistment period, notwithstanding Mrs Ferguson’s evidence. 

56.     Mr Friderich explained that the largest component of animal fat in the pre-service diet was from dairy sources. There was of course meat, dripping, and butter as well, he said, adding that the vegetable oils and margarines of today were then not available. He said that: "Generally the animal fat diet during service were actually lower than the civilian Australian population. In a lot of cases in the rations that were available, the animal fat was lower than the population before service.”  Mr Friderich agreed that there were differences in diet between the different theatres of war, but said that the statement above applied overall, noting that both Dr English and Dr Volker had also agreed with it.

57.     As to the weight increase of 9.5 kgs gained between enlistment (60.5 kgs), and discharge; Mr Friderich said that: “The weight increase only tells us in terms of that he was consuming more calories than he required.” He then discussed Mr Rogalsky in terms of being a lean person and an athlete, and postulated that his weight gain could have been attributed to the fact he stopped exercising in his capacity of doing a desk-based job in the Army.  Mr Friderich commented on the significance of Mr Rogalsky’s weight remaining constant between discharge and 1987. He said that: “All we can determine from his weight remaining stable is that the total energy content of the food remained similar. We can’t determine whether it was animal fat, carbohydrate or any other component of food.”

58.     As to what Mrs Rogalsky told him; Mr Friderich maintained that in her interview with him, Mrs Rogalsky had said that she was reading about health and diet in the 1950s, and in fact reduced fat content of their food from the time her husband returned from the war. He said that contrary to Mrs Rogalsky’s evidence given at the Tribunal that she had only become interested in reducing animal fat consumption in her family in approximately 1965, he had a contemporaneous note which indicated they had discussed the “new order” which she had read about much earlier. He agreed that public consciousness about consumption of animal fat did not occur until the 1970s.

59.     Mr Friderich also said, given Mr Rogalsky’s socio-economic status, (the Tribunal noting that he was from a comparatively well off family who lived in a semi-rural environment with a cow and a cook, was not in dispute), meant he was likely to have been consuming well above the national average in animal fats before enlistment.

professor j levi – oncologist

60.     Professor Levi whose report dated 16 November 2001 was before the Tribunal as Exhibit R5, did not give oral evidence. Professor Levi gave a history of Mr Rogalsky’s admissions to Royal North Shore Hospital.

61.     He addressed the questions of Mr Rogalsky’s cause of death as follows:

“… there is little doubt that Mr Rogalsky’s cause of death was multifactorial in nature. … At the time of his final admission on 11/6/99 Mr Rogalsky had evidence of lesions within the liver documented in April 1999 which were not biopsied but presumed to metastatic malignancy. … At the time of his final admission his presentation was consistent with disseminated infection and the complication related to it of disseminated intravascular coagulation which resulted in rapid deterioration and his death. …

In summary therefore I consider Mr Rogalsky’s death was multifactorial in origin and associated with urinary tract infections, advanced age, cardiac debility and influence from lesions within the liver. I consider it most unlikely that prostate cancer was present at the time of his death and was an immediate factor in his death. I am unable to define any factors associated with his war service that could be considered to have contributed to his death.”

dr r english ao – nutrition consultant

62.     Dr English did not give oral evidence before the Tribunal in this matter, but her report of August 1998 titled “Animal Fat in the Australian Diet Including The Armed Services’ Rations in World War 2”, a scientific review conducted for the Department of Veterans’ Affairs, was before the Tribunal as Exhibit R6.  Not surprisingly it dealt with civilian diets before World War II, patterns of food consumption in the Australian population from that period, post-war trends in food, national dietary surveys and other relevant areas. Dr English also dealt with the SoP Instrument No.191 of 1996,  connecting fat consumption and malignant neoplasm of the prostate.

63.     Dr English also had a table headed “Frequency distribution of total daily intake of fat (grams) for adult males in Australia 1936-8” in evidence as Exhibit R7.

64.     In her report at Exhibit R6, Dr English commented on:

·     Civilian diet before World War II; noting that fat consumption for males was high at 130 – 149 g/head/day. Dr English commented that due to the limited availability of non-animal sources of fat, the level of animal fat was high, estimated to be 114 – 130g/head/day. The data was derived from a National Household Dietary Survey conducted 1936 – 1938.

·     Comparison between civilian and Army diets in World War II; with one exception, the service rations operating in World War II did not contain a higher level of animal fat than the civilian diet for an adult male. For service rations in Australia, the animal fat content ranged from 78.5 to 88.8 percent of that of the civilian diet (National Household Survey 1944).

·     Effects of food rationing post-war; due to reductions in animal fat availability (carcasses and butter), between 1936/39 and 1949/50, even though milk was available, impacted by lowering fat consumption.

·     Trends for 1938/9 to 1993/4; animal fat available for consumption was estimated to have fallen from 116.9 g/head/day to 56.9 g/head/day. Milk increased, and the total fat available for consumption changed from 133.5 g/head/day to 117.5 g/head/day in 1993/4.

·     Actual consumption; decrease in intake of both total and animal fat in the Australian community since the 1944 Household Dietary Survey from 122.0 g in 1944 to 63.4 g in 1983 to 56.8 g/head/day in 1995/6.  Dr English stated that the food intake data from 1983 and 1995/6 indicated that maintaining an intake of 70g animal-based fat a day from 1983 was inconsistent with food and nutrient intake patterns in the Australian community.

·     Questionable validity of recall of past diets, particularly where a surrogate for the deceased person is involved. 

·     Factors influencing food patterns are diverse and complex, commencing in youth, and Dr English considered it speculative to place much weight on a period of military service as responsible for consumption patterns.

65.     Two further reports of Dr English of 26 August 2002 (Exhibit R10) and 20 November 2002 (Exhibit R11) were also before the Tribunal. In her report at Exhibit R10, Dr English commented on the dietary methodology used by Dr Volker and Mr Friderich in connection with this matter. She also referred to what she considered a preferred method, being a dietary questionnaire and four criteria as established by Justice O’Connor (former President of the Tribunal for the Prostate Cancer Grouped Action), to be applied to test the validity of the return.

66.     In her report at Exhibit R10, Dr English commented, saying that the food frequency record was the preferred and most widely accepted method of providing data of an individual’s intake in the past.  She noted that Dr Volker agreed that it was difficult for people to remember past food habits. She then referred to Dr Volker’s methodology, (her use of the food frequency method) using information from the Veteran’s sister which Dr Volker had described as “sketchy”. Dr English commented unfavourably on Dr Volker’s methodology for the post-war (1945 – 1976) calculations, saying that it appeared the usual food frequency methodology had not been used.

67.     Dr English also commented on Mr Friderich’s methodology, using the diet history method, another approved survey method. It too was problematic for the pre-war period, she thought, because of the “sketchy” data from the Veteran’s sister.

68.     In her report at Exhibit R11, Dr English informed the Department of Veterans’ Affairs that she was a co-author of the questionnaire, and mentioned Justice O’Connor’s guidelines.

SUBMISSIONS AND CONCLUSIONS

the applicant

69.     The Applicant, whose written Closing Submissions were before the Tribunal, contended that the Veteran’s death was the result of a diet which was high in animal fat, and was 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. Ms Buchanan submitted further as follows:

·     She submitted that the Veteran’s death was the result of malignant neoplasm of the prostate with which he was diagnosed in 1987. Ms Buchanan also submitted that the Applicant relied on the opinion of Dr Levi (Exhibit R5), which raised the hypothesis that malignant neoplasm of the prostate caused prostatectomy, which led to bladder neck incontinence which caused urinary tract infections, which ultimately caused the Veteran’s death.

·     It was reasonable to hypothesise that 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 (Factor 5(c) of SoP Instrument No.84 of 1999). The Applicant relied also on Instrument No.69 of 2002 with regard to the definition of “animal fat”, now to include “eggs from birds”.

·     The Applicant relied on Dr Volker’s methodology using diet history analysis as endorsed by Dr English.  Ms Buchanan submitted that the validity of the “Dietary
Survey Questionnaire” methodology adopted by Dr English had its own limitations, and accordingly pointed out with some criticism that Mr Friderich based his conclusions on this questionnaire which had not been amended since 1999, and the test cases for which it was developed. 

·     The Applicant relied on Dr Volker’s report  of animal fat consumption adjusted for the inclusion of “eggs from birds”, as follows:

“Pre-service:  88 grams/day

During service:  104 grams/day (unchanged)

After service(1945 to 1976)    125 grams/day”

The Applicant submitted that an increase from 88 to 125 grams represented an increase of 42 percent for a period well in excess of 20 years.

·     The Veteran’s habit of consuming such animal fat was related to his service in the Army, and it was not relevant that the service diet was lower in fat than the civilian diet.  It was submitted that Mrs Rogalsky had said in evidence: “All I know is that I was in the army and it was not a restricted fat diet.”

·     Mr Rogalsky’s activity levels were identical before and during service and decreased after service.

·     Mr Rogalsky’s weight increased significantly (9.5 kgs) during service, and remained constant until the diagnosis of prostate cancer in 1987. Accordingly, Ms Buchanan submitted that the weight gain was due to an increase in calorie intake during service, and submitted that animal fat could not be excluded from his calorie intake. Regardless of whether army rations were lower in fat, Mr Rogalsky’s quantities and choices were his own.  Ms Buchanan submitted that Mrs Rogalsky argued her husband developed a liking for cheese which was followed through after he left service, thus maintaining increased consumption of fat after service, and contributed to by service.

·     Referring to the 15 percent weight gain from enlistment to discharge, Ms Buchanan stated that such increase was in excess of what was sufficient to satisfy the Tribunal in Mason and Repatriation Commission [2002] AATA 1329.

· The Tribunal accepted the beneficial nature of the legislation and application of section 119 of the Act in regard to paucity of material relating to pre-war diet in Re Fitzsimmons and Repatriation Commission [2001] AATA 477.

·     The Applicant also relied on paragraph 58 of Keenan and Repatriation Commission [2000] AATA 707 which she said was repeated in all six of O’Connor J’s related decisions.

“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.”

·     In that connection, Ms Buchanan submitted, citing Treloar v Australian Telecommunications Commission (1990) 26 FCR 316, that the contribution of service had to be de minimis.

·     Ms Buchanan submitted that applying Deledio v Repatriation Commission (supra), the Tribunal could not be satisfied beyond reasonable doubt that Mr Rogalsky did not increase his consumption of animal fat during service, which contributed to his significant weight gain on service, (particularly through consumption of cheese), which he also maintained post-service. She submitted that the Tribunal could not be satisfied beyond reasonable doubt that Mr Rogalsky did not increase his animal fat consumption by at least 40 percent to at least 70 grams/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate.

the respondent

70.     The Respondent in his written submissions, after referring to standards of proof, noted, referring to Professor Levi’s report, that it was common ground between the parties that adenocarcinoma of the prostate materially contributed to the Veteran’s death. Mr Marsh submitted that no other hypothesis was raised by the material suggesting any alternative means of connecting the Veteran’s death to his service. He referred to Factor 5(c) of SoP Instrument No.84 of 1999, and submitted that the postulated link between the Veteran’s death and his service by way of dietary fat increase did not constitute a reasonable hypothesis.  Mr Marsh also referred to the relevant law, and case law, Deledio v Repatriation Commission (supra), East v Repatriation Commission (1987) 16 FCR 517, Re Dell and Repatriation Commission (1986) 9 ALD 596, and Repatriation Commission v Bey (1997) 79 FCR 364 amongst others.

71.     In connection with Mrs Rogalsky’s claim, Mr Marsh submitted that:

·     The Respondent relied on the reports of Mr Friderich (Exhibit R8), and Dr English (Exhibit R6), noting Dr English’ pre-eminence in the field of nutrition and the reliance of Dr Volker on her views, in particular in relation to fat consumption in the World War II Army diet.

·     Mr Marsh submitted in connection with Dr English’s report at Exhibit R6, that according to the 1936 to 1938 National Household Survey, the animal fat content of the Australian civilian diet for adult males before World War II was high, and in the range of 114 – 130 grams/head/day.  He noted Mr Friderich’s agreement in the latter’s oral evidence that these surveys are still conducted today. Mr Marsh also referred to a later survey in 1944 which indicated similarly that such intake was high, (122.2 grams/head/day). By way of comparison he noted that the World War II diet provided for a lower level of animal fat than the average civilian diet for an adult male of the same time, that being 78.5 percent to 88.8 percent of the civilian diet. The sole exception was referable to service in New Guinea and the Pacific Islands, not relevant to Mr Rogalsky.

·     Mr Marsh’s analysis of Mr Rogalsky’s animal fat consumption taking into account the requirements of the SoP, were in paragraphs 28 to 32 of his submissions as follows:

“28. To satisfy the SoP factor, animal fat intake must have increased by "at least 40 per cent and to at least 70 grams per day". Taking the Middle East ration (ration scale 4 above)  [117.4 grams/day], as an example, and noting that the Veteran spent six months there, the following calculations can be made:

·     maximum pre service civilian diet animal fat content that would permit a 40 per cent increase to 117.4 grams (ie civilian diet plus 40 per cent = 117.4 grams) = 83.9 grams;

·     corresponding total civilian fat intake (using method from Dr English's report) = 96.4 grams;

·     percentage of Australian adult male population with total fat content less than 100 grams per day in 1936-1938 survey (see R7) = 8.2 per cent.

29.  It can therefore be seen that almost 92..0 per cent of Australian adult males in 1938 had a diet that would exceed the maximum animal fat intake that would allow the SoP criterion to be met in relation to service in the Middle East.

30. Put another way, the figures above show that if a person had a pre war diet where total fat exceeded 83.9 grams per day, they could not increase total fat intake by 40 per cent by eating the Middle East diet during service. Mr Rogalsky would need to have been in the lowest percentile pre war for him to have increased daily animal fat consumption by the required 40 per cent during service.

31. It should also be noted that Mr Rogalsky spent just 6 months of his total service of 64 months in the Middle East. For the remainder of his service, including the nine months before he was posted to the Middle East, he was on ration scale 2, applicable to service in temperate Australia.

32. For Mr Rogalsky to satisfy the 40% increase necessary to meet the SoP, his pre-service animal fat intake would need to have been significantly below average (much less than the 114 to 130 gram range) and indeed lower than the great majority of the Australian adult male population. This would have required a diet extremely low in dairy products and/or very low in meat products”.

·     Mr Marsh also referred to butter rationing for the period June 1942 to June 1950 and meat rationing from January 1944 to June 1948, resulting in, he submitted, lower animal fat content in the average civilian diet from 116.9 grams/head/day in 1938/9 to 102.5 grams/head/day in 1948/9.

·     The Respondent submitted that to ingest 70 grams/head/day of animal fat was easily satisfied in both Army and civilian diets for the relevant period, as typical Australian diets of the time had animal fat in excess of that level for the required 20 years post service or at least to the 1970s.  However, Mr Marsh submitted that it would be very difficult to show that Mr Rogalsky increased his animal fat consumption by 40 percent post-service, and that accordingly, the tests in the SoP could not be satisfied.

·     Mr Marsh referred to the Tribunal’s agreement that Dr English’s methodology be used, given that both Dr Volker and Mr Friderich had relied on her report.  Accordingly, Mr Marsh referred to Dr English’s report dated 23 August 2002 which was before the Tribunal as Exhibit R10.  He noted that Dr English approved the method of food frequency or diet history method for past recall, noting problems due to Mrs Ferguson’s “sketchy” recollection of Mr Rogalsky’s pre-war diet. 

·     Mr Marsh referred to Dr English’s criticism of Dr Volker’s use of the food frequency methodology used to calculate the Veteran’s post -war diet.

·     Mr Marsh submitted Mr Friderich’s estimate regarding the Veteran’s pre-war diet was the most accurate because of his application of the National Household Survey, and noting the Rogalsky family’s socio-economic status as a comfortable middle class family who could afford to eat well.  He asked the Tribunal to reject Dr Volker’s view that given their socio-economic status, Mr Rogalsky could afford to cut off excess fat, and that this would have lowered his fat consumption. Mr Marsh submitted that in making that submission, Dr Volker had ignored the fact that even lean meat had fat content, and the fact that dairy products also contain fat. He noted further the evidence of his wife that Mr Rogalsky was fond of milk and milk products. In that regard, Mr Marsh stated at paragraph 51, 52 and 59 of his closing submissions:

“51. Acceptance of Dr Volker’s calculation of the veteran’s pre-service animal fat consumption would put him in the lowest percentile of the population for animal fat consumption, based on the 1936-1938 survey (see paragraph 29 above). Given the family’s social situation, the scenario borders on the inconceivable, the respondent submits.

52. In the alternative the respondent submits that the sources of information for the veteran’s pre service animal fat consumption are unreliable and at best “quite sketchy” …

59. As already noted, the national average was in the range of 114-130 grams per day, and any figure within that scale would preclude a finding that there was a 40% increase in animal fat consumption by the veteran during his service.”

·     Mr Marsh also asked the Tribunal to find that neither of the experts were able to accurately obtain reliable evidence regarding Mr Rogalsky’s pre-war diet and animal fat consumption and hence, the National Dietary Survey should be used. Mr Marsh also criticised Dr Volker for having calculated figures on the assumption Mr Rogalsky served in the Middle East for the whole period of 64 months of operational service, whereas it was in fact only six months.

·     Mr Marsh further commented on Dr Volker’s figures for the 42 years post-war, because as he submitted, Mr Rogalsky underwent several lifestyle changes in that time, including ageing, and exposure to Australian dietary habit changes with regard to animal fat consumption.

·     As to Mr Rogalsky’s dietary habits; the Respondent submitted on the basis of Mr Friderich’s evidence that these habits are established in childhood, noting that Mr Rogalsky was entirely dependent on his family cook’s cuisine, followed by that of his wife. He stated at paragraphs 79 and 81 of the Closing Submissions that:

“ … it is clear that the veteran’s dietary habits post war were not significantly different to what they had been pre service, and that in any event his dietary habits were then largely dictated by his wife and reflected the normal diet of the time. … The only basis for the applicant’s claimed increase in animal fat consumption post service is an alleged fondness for cheese that he developed on service. Whatever cheese he may have consumed on service, he did eat cheese pre service as well …”

·     Mr Marsh also referred to Mr Friderich’s view of Mr Rogalsky’s weight gain which was that he had moved from a very physically active environment at school to a more sedentary life style in the Army.

· Mr Marsh’s view of the application of section 119 of the Act and Mason and Repatriation Commission (supra), was that at paragraph 75, Weinberg J had stated that section 119 did not provide a warrant to “fill in the gaps where the evidence does not assist the applicant’s case.”

THE TRIBUNAL

72.     In order to make the correct and preferable decision regarding whether the death of Mr Rogalsky was war-caused, the Tribunal had to take into account the evidence before it, the submissions of the parties, the case law and relevant legislation.

73.     The Tribunal puts on record its appreciation of the difficulties encountered by Mrs Rogalsky and her family in recalling precise details of diet which date back a long time, but accepted that Mrs Rogalsky was a witness of truth.

74. The Tribunal was also able to take into account the beneficial nature of the legislation, and the application of section 119 of the Act which allows it to take into account difficulties arising from the paucity of information available with regard to Mr Rogalsky’s pre-war diet.

75. The Tribunal noted that Mr Rogalsky rendered continuous fulltime service in the Army from 17 June 1940 to 27 October 1945, and that by virtue of his service in the Middle East, the whole of the service was deemed to be operational service in terms of section 6 of the Act.

76.     The Tribunal noted the discussion at the commencement of the Hearing regarding the primary cause of death of Mr Rogalsky, and whether the “disseminated malignancy of unknown primary” as stated on the Death Certificate (T6), meant that there was no SoP available in this case. In that scenario, Ms Buchanan submitted in her opening that she would be satisfied to have the Tribunal consider the reasonable hypothesis issue on the basis of Bushell v Repatriation Commission (supra) and Byrnes v Repatriation Commission (supra).

77.     However, the Tribunal noted that when the written submissions were made, the Respondent conceded as follows at paragraph 5 of the Respondent’s Closing Submissions:

“Although not specifically stated in the formal certification of death (T documents, f.16) it is common ground between the parties that adenocarcinoma of the prostate materially contributed to the late veteran’s death. The clinical course of events leading to death is set forth in the report of Professor Levi. (Exhibit #R5, p.4).”

78.     Mr Marsh also submitted that “although there were other conditions that contributed to the veteran’s death the applicant relies solely on carcinoma of the prostate to establish a causal relationship between service and death.” The Respondent submitted that no other hypothesis was raised by the material suggesting any alternative means of connecting the veteran’s death to his service.

79.     Accordingly, the Tribunal proceeded on the basis of the application of the SoP and the principles in Deledio v Repatriation Commission (supra) which followed the "reasonableness" test approved in Byrnes v Repatriation Commission (supra) and approved in Delediov Repatriation Commission (supra).

80.     The Tribunal moved then to consider whether the material before it pointed to a reasonable hypothesis linking Mr Rogalsky’s claimed condition of death resulting from malignant neoplasm of the prostate to his war service.

81.     As the Veteran has operational service, the Tribunal was bound to apply the law as enunciated by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82, which held that:

“… the course which the tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 amendments) 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 that person [is] as follows:

1The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

2If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

3If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

4The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.”

82.     With respect to determining when an hypothesis is reasonable, the Tribunal noted Heerey J's approach in Deledio v Repatriation Commission (supra) which followed the "reasonableness" test approved in Byrnes v Repatriation Commission (supra).

Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:

(i)        contrary to proved or known scientific facts,

(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or

(iii)      (since 1994) inconsistent with (not upheld by) an applicable SoP.

If the hypothesis is reasonable the claim will succeed unless:

(iv)one or more facts necessary to support it are disproved beyond reasonable doubt; or

(v)the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.”

83.     The Tribunal moved then to consider whether the totality of the material before it raised an hypothesis linking Mr Rogalsky’s death, which it was agreed was materially contributed to by the condition of malignant neoplasm of the prostate diagnosed in 1987, to his war service.

84.     The material raised in connection with an hypothesis connecting Mr Rogalsky’s death with his war service was that the Veteran’s death was a result of malignant neoplasm of the prostate with which he was diagnosed in 1987. The death arose, it was submitted, (relying on the report of Professor Levi), (Exhibit R5), in that the malignant neoplasm of the prostate caused prostatectomy, which led to bladder neck incontinence, which caused urinary tract infections, and which ultimately caused the Veteran’s death. The cause, it was hypothesised, was the commencement of eating a diet which was high in animal fat during military service, and as a result of that service, a diet high in animal fat which continued post-war, particularly from eating cheese.

85.     It was hypothesised that Mr Rogalsky’s significant weight gain, (9.5 kgs), during service, which remained constant until the diagnosis of prostate cancer in 1987, was due to an increase in calorie intake during service. It was hypothesised that animal fat could not be excluded from the increase in calorie intake.

86.     Accordingly, on the basis of the above, and the totality of the material, the Tribunal found that an hypothesis could be raised linking Mr Rogalsky’s death from the material contribution of malignant neoplasm of the prostate with his war service.

87.     The Tribunal turned then to consider the relevant SoP in this matter, noting that the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting Mr Rogalksy’s death from the material contribution of malignant neoplasm of the prostate with the circumstances of service included, Factor 5(c) of Instrument No.84 of 1999.  Factor 5(c) states as follows:

“5(c) 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;”

88.     Animal fat is defined as follows in Instrument No.84 of 1999:

“ ‘animal fat’ means fat contained in or derived from meat, other flesh or offal from animals (including birds), and dairy products;”

89.     The definition has been revised in Instrument No. 69 of 2002 as follows:

“ ‘animal fat’ means fat contained in or derived from:

(i)meat, other flesh or offal from animals (including birds but excluding seafood),

(ii)       dairy products, or

(iii)      eggs from birds.”

90.     Accordingly the Tribunal had to consider whether the facts raised gave rise to a reasonable hypothesis linking the circumstances of Mr Rogalsky’s death with war service. In doing so, the Tribunal had to consider whether Mr Rogalsky increased animal fat consumption by at least 40 percent, and to at least 70gm/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate in 1987 in satisfaction of Factor 5(c) of Instrument No.84 of 1999. The Tribunal noted that the hypothesis would fail if it was contrary to proven or known scientific facts, and obviously fanciful or similarly too remote or tenuous.

91.     The Tribunal considered the evidence before it regarding the measurement of animal fat consumption, and the methods employed by dietitians, Drs Ruth English. and Dianne Volker, and Mr Willi Friderich.

92.     The Tribunal noted further, figures for Mr Rogalsky’s animal fat consumption pre-war (1936 to 1940), in the immediate post-war period (1940 to 1945) and from 1971 to 1987, when he was diagnosed with malignant neoplasm of the prostate. The Tribunal was mindful that 1965 marked the twenty year period post-war.

93.     As to the pre-war period; the Tribunal was mindful that Mrs Rogalsky did not know the Veteran before the war, and that the dietitians were unable to ascertain precise details of his diet for that period. It was not in dispute that he came from a comparatively well to do family, and that the family had land at Springwood in the Blue Mountains, a cook and a cow, that he boarded at Barker College, and that they also lived on Sydney’s North Shore. The main dietary information came from Mrs Ferguson, Mr Rogalsky’s sister, whose recollections were considered “sketchy” by both Dr Volker and Mr Friderich. The Tribunal noted also that she married and left home before her brother enlisted.

94.     The Tribunal was aware from the evidence however, that as the Veteran’s family had a cow, full cream milk would have been available, and of the evidence of some cheese consumption at that time. It was also noted that Mrs Rogalsky gave evidence of her husband’s enjoyment of milk and milk products, and her evidence that she later cooked dishes which included milk. Mrs Rogalsky’s evidence was that she cooked what her husband liked, (even though he was not a fussy eater), and that this did not differ from what he had been used to.

95.      Given the paucity of the evidence about the boarding school diet, and Mr Rogalsky’s pre-war diet made it difficult for the Tribunal to ascertain the base line from which it could calculate, as indicated by the SoP, whether Mr Rogalsky increased animal fat consumption by at least 40 percent, and to at least 70gm/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate in 1987.

96.     The Tribunal was mindful of the two different approaches used by the experts in assessing animal fat consumption, with both Dr Volker and Mr Friderich accepting Dr English’s methods in part. The Tribunal noted from the evidence and submissions that animal fat consumption in the usual Australian diet in the pre-war period was higher than when the population became more conscious of fat and substituted margarine and vegetable oils in the 1970s. In that connection there was conflict of evidence between what Mrs Rogalsky told the Tribunal about the time when she commenced being conscious of, and cutting down animal fat consumption in her household (1965), and what Mr Friderich appeared to have recorded she told him (1950s).

97.     The Tribunal was mindful that to meet tests in Factor 5(c) of the SoP, the Veteran was required to ingest at least at least 70 grams/day for the 20 years before the clinical onset of malignant neoplasm of the prostate. The Tribunal was also mindful taking into account the evidence of the dietitians, that there was no dispute amongst the parties that 70 grams a day was achieved by the Veteran in all the relevant periods, pre, during, and post-war, due to the nature of the wider Australian diet. What was more difficult was to ascertain figures approximating to actual intake. The Tribunal noted the two different approaches adopted by Dr Volker and Mr Friderich regarding the assessment of the Veteran’s fat consumption.

98.     The Tribunal noted that Dr Volker’s report was adjusted for the inclusion of “eggs from birds”, and accordingly the consumption of animal fat was said to be as follows:

“Pre-service:  88 grams/day

During service:  104 grams/day (unchanged)

After service(1945 to 1976)    125 grams/day

99.     Dr English reported 114 –130 grams/head/day pre-war. These figures were derived from the National Household Dietary Survey conducted in 1936 – 1938, a survey which continues to be carried out. Mr Friderich estimated that given Mr Rogalsky’s socio-economic situation, his animal fat consumption pre-war would have been more than the national average.

100.   In deciding whether the hypothesis linking Mr Rogalsky’s death to his war service was reasonable, and not fanciful or untenable, the Tribunal noted that the Australian population, including Mr Rogalsky, ingested at least 70 grams/day of animal fat for the whole relevant period, pre-war, during service and post-war.  That in part in satisfied the tests in Factor 5(c) of the SoP.

101.   The Tribunal considered Factor 5(c) of the SoP further to ascertain if Mr Rogalsky’s animal fat intake increased by at least 40 percent for at least 20 years before the clinical onset of his malignant neoplasm of the prostate.

102.   The Tribunal noted the Applicant’s submissions that the Veteran’s habit of consuming animal fat was related to his service in the Army, and that it was not relevant that the service diet was lower in fat than the civilian diet. The Applicant submitted, relying on Dr Volker, that an increase from 88 to 125 grams represented an increase of 42 percent for a period well in excess of 20 years. The truth of facts was not in question at this stage. However there was no material before the Tribunal pointing to the Applicant’s fat consumption increasing to 125 grams per day on service.

103.   In order for the raised hypothesis to be reasonable pursuant to Factor 5(c) of the SoP, fat consumption must have increased by 40 percent arising out of service. On Dr Volker’s estimates, Mr Rogalsky’s animal fat consumption increased by 42 percent overall from his estimated pre-war intake level, which was based on a pre-war animal fat consumption of 88 grams per day rising to 125 grams per day post-service.

104.   The Tribunal finds the facts raised by the Applicant that the base figure of 88 grams of animal fat consumption per day by Mr Rogalsky flies in the face of scientifically estimated figures of the day, from the National Household Dietary Survey of 1936 – 1938, being 114 – 130 grams of animal fat consumption per day. The figure of 88 grams a day was estimated as a result of interviews with Mrs Ferguson which were considered to be “sketchy”, and with Mrs Rogalsky who had not been present at the time, and did not know the Veteran pre-war. Accordingly those facts raised were held by the Tribunal to be incredible and contrary to known scientific facts.

105.   This being the case, the Tribunal finds there is no material pointing to the requisite increase in animal fat consumption in accordance with Factor 5(c) of the SoP. There was material pointing to Mr Rogalsky’s increase in fat consumption post-war being attributable to a predilection for cheese developed on service.  However there was also material pointing to his consumption of cheese pre-war. The hypothesis linking Mr Rogalsky’s death with increased consumption of animal fat by the required 40 percent over 20 years, was not reasonable and must fail.

106. The Tribunal then turned to consider section 120(3) of the Act which provides that it must be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death of the Veteran was war-caused if, in its opinion, the material before it does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the veteran.

107.   In that connection, the Tribunal was mindful that Mr Rogalsky came from a comparatively well off family, and that his pre-war years were spent in Springwood where the family had a cow, noting the evidence that he ate cheese, but in particular that although his sister did not like milk, he did. The Tribunal was satisfied that he would have had full cream milk and milk products as part of his diet at Springwood, noting also that his family also lived on Sydney’s North Shore and that he attended Barker College as a boarder.

108.   The Tribunal noted the results of the National Household Dietary Survey of 1936 – 1938, being 114 – 130 grams of animal fat consumption per day, noting also that this survey was repeated and is still being used. Those figures were cited by Dr English, who it was agreed is a pre-eminent dietitian.

109.   The figure of 88 grams of animal fat a day as given by Dr Volker was estimated as a result of interviews with Mrs Ferguson which were considered to be “sketchy”, and with Mrs Rogalsky who had not been present at the time, and did not know the Veteran pre-war. Mr Marsh submitted that to be acceptable, this level of animal fat consumption would have required a diet extremely low in dairy products and/or very low in meat products which the Tribunal accepted was not the case in Mr Rogalsky’s home, given socio-economic situation.

110.   Notwithstanding the paucity of evidence with regard to Mr Rogalsky’s pre-war life, the Tribunal could come to the conclusion that he ate a usual Australian diet of the time, with full cream milk from the family’s own cow, and the diet of a comparatively well to do family, which would have included meat.  The Tribunal accepted Mrs Rogalsky’s evidence that she knew what he liked to eat, and most likely provided a similar diet for him post-war as what he had pre-war, with the addition of cheese which it was likely he also had pre-war.

111.   The Tribunal was mindful that Mr Friderich estimated that given Mr Rogalsky’s socio-economic situation, his animal fat consumption pre-war would have been more than the national average.  

112.   The Tribunal considered from the evidence that it was more likely that a comparatively well to do family with a cow would have ingested more animal fat, than a family of lesser means. The Tribunal was not pursuaded by the argument of Dr Volker which was that because Mr Rogalsky came from a comparatively well to do family, he would have consumed less fat, purchasing leaner cuts of meat and cutting the fat from  his meat. The Tribunal noted that meat has fat content even with the fat cut off.

113.   The Tribunal accepted the submission of the Respondent:

“51. Acceptance of Dr Volker’s calculation of the veteran’s pre-service animal fat consumption would put him in the lowest percentile of the population for animal fat consumption, based on the 1936-1938 survey (see paragraph 29 above). Given the family’s social situation, the scenario borders on the inconceivable, the respondent submits.

52. In the alternative the respondent submits that the sources of information for the veteran’s pre service animal fat consumption are unreliable and at best “quite sketchy” …

59. As already noted, the national average was in the range of 114-130 grams per day, and any figure within that scale would preclude a finding that there was a 40% increase in animal fat consumption by the veteran during his service.”

114.   The Tribunal then moved to consider the Veteran’s animal fat consumption during the war. It was undisputed by the dietitians, and the Tribunal accepted that the Army diet Mr Rogalsky ate was lower in animal fats than the usual Australian diet of the time.

115.   The Tribunal noted that Mr Rogalsky served six months in the Middle East, and considered the animal fat consumption figures for his service.  In that connection it was undisputed that Mr Rogalsky gained 9.5 kgs during service, a weight he maintained until he became ill with prostate cancer in approximately 1987.

116.   The Tribunal noted the analysis of the various reasons for that weight gain, and accepted that the Veteran had been very physically active before enlistment, and did a sedentary job during service, noting also that in the relevant 42 years post service, his life and food and animal fat intake would have changed several times with ageing, dietary changes in the Australian population, and other factors. The reason postulated for the increase in weight by Ms Buchanan was that the weight gain was due to an increase in calorie intake during service, and that animal fat could not be excluded from that. The Tribunal accepted that, but noted also that Mr Rogalsky had moved from a very physically active life to a desk job during service. It flowed then, that Mr Rogalsky’s weight gain would have been attributable to an excess of calories in relation to his activity level in part at least, rather than solely to an increase in animal fat consumption.

117.   The Tribunal was mindful of Mrs Rogalsky’s evidence that she controlled the family diet, and that her husband ate all meals (including lunch), at home during a large part of their lives post-war. The Tribunal was also mindful of the evidence that the Veteran learned to like cheese during the war and continued that habit afterwards, accepting also that he ate cheese before enlistment. The Tribunal accepted that from approximately 1965, the Rogalskys were aware of cholesterol problems associated with high fat consumption, and lowered their animal fat consumption as given in evidence by Mrs Rogalsky. The Tribunal noted that Mrs Rogalsky gauged the 1965 date by reference to her daughter who was born in 1945, marrying, and leaving home aged 20.  Nothwithstanding evidence to the contrary by Mr Friderich, but given the fact that the Tribunal accepted Mrs Rogalsky as a witness of truth, and the beneficial nature of the legislation, the Tribunal has chosen to accept 1965 as the more appropriate date to mark a decrease in the Veteran’s animal fat consumption.

118.   The Tribunal noted also Mr Marsh’s submission that due to butter rationing (1942 – 1950) and meat rationing, (1944 – 1948), the Australian population lowered its animal fat consumption to approximately 102.5 grams/head/day in 1948/9. The Tribunal accepted the above submission regarding the decrease in consumption of animal fat by Australians after the war.

119.   On the basis of all the material before it, the Tribunal was  satisfied beyond reasonable doubt that there were not sufficient grounds for it to find that Mr Rogalsky increased his animal fat consumption by at least 40 percent for at least 20 years before the clinical onset of malignant neoplasm of the prostate, thus connecting his death to his war service.

120. Taking into account section 120(1) of the Act, the Tribunal 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 Tribunal is satisfied beyond reasonable doubt that the material before it does not suggest that section 8 of the Act applies, may the Tribunal determine that the death of Mr Rogalsky was not "war-caused", and that indeed was what the Tribunal held, that it was satisfied beyond reasonable doubt that there was no sufficient ground for making the determination that Mr Rogalsky’s death was war-caused pursuant to the legislation.

DECISION

121.   The decision under review is affirmed.

I certify that the 121 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger Senior Member and Mr S Webb, Member.

Signed:         L Bonouvrie

Associate

Date of Hearing  4 July 2002

Written Closing Submissions:        2 August 2002, 1 October 2002,

17 April 2003, 15 April 2003

Date of Decision  11 August 2003

Solicitor for the Applicant               Ms J Buchanan, Legal Aid Commission

Advocate for the Respondent        Mr J Marsh