Ryan and Repatriation Commission

[2007] AATA 1648

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1648

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q 200500325

VETERANS' APPEALS DIVISION		)
Re		JEAN RYAN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr RG Kenny, Member

Date8 August 2007

PlaceBrisbane

Decision The Tribunal affirms the decision under review. 

..................[Sgd]............................

RG Kenny 
  Member

CATCHWORDS

VETERANS’ AFFAIRS – operational service with Royal Australian Navy – death from prostate cancer – application of Statements of Principles – animal fat consumption – reasonable hypothesis of relevant relationship to eligible war service not raised – death not war-caused – decision affirmed

Veterans’ Entitlement Act 1986 ss 5E, 6A, 7, 8, 11, 14, 120, 120A

Repatriation Commission v Deledio (1998) 83 FCR 82
Bushell v Repatriation Commission (1992) 175 CLR 408
Keenan and Repatriation Commission [2000] AATA 707
Repatriation Commission v Bey (1997) 79 FCR 364

REASONS FOR DECISION

8 August 2007   Mr RG Kenny, Member

Background

1.          Gordon Ryan (the veteran) served in the Royal Australian Navy (RAN) from 30 September 1942 until 12 March 1946.  He died on 17 June 1991 at the age of 68 years.  On 4 May 2004, Jean Ryan, his widow and dependant, as those terms are defined in ss 5E and 11, respectively, of the Veterans’ Entitlements Act 1986 (the Act), lodged a claim, under s 14 of the Act, for a pension. This was on the basis that the veteran’s death was war-caused in accordance with s 8 of the Act. That claim was rejected by the Repatriation Commission (the respondent) on 30 November 2004 and, in turn, by the Veterans’ Review Board (the Board) on 9 May 2005. Mrs Ryan seeks review of that decision by the Administrative Appeals Tribunal (the Tribunal).

Service

2.        The veteran served in ships and shore postings in New Guinea from February 1943 until June 1944 and on Thursday Island from May 1945 until February 1946.  It is common ground that all of his RAN service constitutes eligible war service in the form of operational service in accordance with sections 7 and 6A, respectively, of the Act.

Issues and Legislation

3. In order for the death of a veteran to be accepted as being war-caused, one of the requirements in section 8 of the Act must be met. Relevant in this matter is s 8(1)(b) of the Act which reads:

“(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)…

(b)the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;”…

4. Where, as in this case, operational service was rendered, the standard of proof applicable to the determination is set out in s 120(1) of the Act which reads:

“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.”

5.      The application of that provision is affected by the terms of subsections 120(3) and 120A(3) of the Act.  Those provisions read:

“120(3)    In applying subsection (1) or (2) 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 or a defence-caused injury;

(b)that the disease was a war-caused disease or a defence-caused disease; or

(c)     that the death was war-caused or defence-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...

120A  Reasonableness of hypothesis to be assessed by reference to 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.”

6. The provisions noted above relate to matters of causation and require a consideration of the Statements of Principles published by the Repatriation Medical Authority (RMA). However, before applying the provisions of the Act relating to causation, it is necessary to determine the “kind of death” applicable to the veteran. That matter is to be determined to the decision-maker’s reasonable satisfaction in accordance with s 120(4) of the Act. The veteran’s death certificate was in evidence. It is not in dispute and I am satisfied that the cause of death is “carcinoma prostate”.

Evidence

Mrs Ryan

7.          Mrs Ryan gave the following evidence.  She met the veteran in 1942 after he had enlisted in the RAN.  Prior to his departure for New Guinea, they attended various social events together and, at times, went to her parents’ place.  After his final return to Australia, they met socially on a more frequent basis.  They stopped seeing each other for a time after the veteran indicated that he intended to try his hand at farming when he left the RAN.  At that stage, Mrs Ryan moved to Newcastle and the veteran remained in Brisbane.  They continued to correspond with each other. The veteran obtained work with the state railway authority and was posted to Dalby.  Mrs Ryan arranged a transfer through her employment and also moved to Dalby.  They were married four months later in 1950. 

8.          The veteran continued to work in various capacities with the railway authority and Mrs Ryan described this as being physically arduous and heavy.  It involved loading and unloading goods and machinery for farmers and others, checking the weight and length of the train, shunting wagons into sidings, helping passengers with their luggage and much walking and running the full length of the train.

9.          Mrs Ryan described the veteran as a man of slight build when she first met him.  Prior to his overseas service, he took meals at her parents’ house from time to time and she noted nothing unusual about his eating habits.  After his return to Australia, Mrs Ryan recalls being told by him that the food in New Guinea and on Thursday Island was “terrible”, that he had always felt hungry during his time in the RAN and that he had gained some relief from hunger by eating large quantities of canned meat or “bully beef”. After their marriage, when she assumed responsibility for meal preparation, she was amazed by the amount of food the veteran ate. In particular, he consumed a large volume of meat products.  His practice was to eat meat for most of his meals including breakfast and lunch.  He constantly complained about being hungry and would regularly eat cheese and toast late at night.  She recalled the early days of their marriage when they had no refrigeration.  They would buy a sheep which needed to be consumed reasonably quickly for that reason. 

10.        On 30 May 2004, Mrs Ryan signed a 13 page dietary survey form which set out a detailed analysis of the veteran’s eating habits before the war and after she was married in 1950.  She completed this with the assistance of an RSL advocate. Mrs Ryan had no direct knowledge of the veteran’s eating habits in the period before she met him.  Nevertheless, the advocate insisted she complete that part of the form.  She relied on the habits of her own brothers because, in discussions with the veteran, she was told his eating habits had been similar to theirs.  She did not know what she was doing when completing the pre-war information on the form.  The form described a very substantial increase in the quantity of food consumed particularly meat, eggs and dairy products. Mrs Ryan wrote that she usually cooked in dripping or butter, would serve roast vegetables to the veteran four or five times per week and always added butter, gravy and sauce to his meals.  She said it was also his practice to eat take-away food in the form of pies, fish and chips and hamburgers, approximately two to four times per week.

The veteran’s brother: Mr R Ryan

11.        Mr Ryan completed a statement, dated 27 June 2005, where he gave the following information.  He was seven years younger than the veteran.  Their father was a fettler with the state railway authority and cultivated a garden which was- made possible by having access to water from the steam train reservoir.  They had a cow from which they got milk and made butter.  They had hens which provided eggs and the occasional poultry.  Cases of fruit from orchards were delivered freight free by the railway.  The family always managed to enjoy an adequate and healthy diet.  The veteran left school at age 14 years and worked on local dairy farms where he would stay for six days a week and return home on Sundays when the family would enjoy a roast dinner.

Dietary material

12.        In evidence were reports completed, in 1998 and 2002, by nutrition consultant, Dr. Ruth English.  Reports were also provided by practicing dieticians, Sally Macqueen and Trudy Williams, both of whom gave evidence at the hearing. 

13.        Ms Williams’ initial report, dated 22 November 2004, analysed the data provided by Mrs Ryan in her survey form.  She calculated that the information described a pre-war consumption of 38gm of animal fat per day and a post-war consumption of 364.7gm of animal fat per day.  This constituted an increase of 859% and she concluded that the survey responses were not a valid representation of the dietary differences between the two periods.  Ms Williams confirmed this in a further report, dated 26 August 2005, where she estimated that such an increase in consumption would have resulted in a gain of approximately 36kg per year whereas she noted that his actual weight gain from his youth until he was aged in his mid 60s was 27kg.

14.        In her evidence, Ms Williams referred to the estimates for the pre-war consumption as being unrealistically low.  She was referred to a report completed by Ms Macqueen on 28 June 2007 which included a series of tables prepared by Ms Macqueen after she interviewed Mrs Ryan on 4 July 2006.  One of those tables purports to describe the veteran’s pre-war diet.  Ms Williams estimated that a male of the veteran’s then age who, as the veteran had done, was engaged in work on dairy farms in country areas would require approximately 15,000 kj per day.  The analysis of the data provided in the pre-war table provided by Ms Macqueen could only be assessed as equating to 5300 kj per day even when additional components were added to the dietary information in the table.  Again, Ms Williams considered this could only constitute an underestimate of the veteran’s pre-war eating habits.

15.        In her initial report, Ms Macqueen analysed the data provided by Mrs Ryan and concluded that the post-war animal fat intake was at least 50g per day greater when compared with the pre-war diet which appeared to comprise mainly plant-based foods and smaller meat and butter servings.  She noted the difficulty in obtaining accurate information about the veteran’s pre-war dietary habits.  As to any association with the veteran’s service, she expressed the opinion that the only possible (weak) causal link was the possibility that a predominance of “bully beef” as diet staple during service gave him a “taste” for meat and hence had an influence on the post-war diet, in that he selected more animal-based foods.  She also noted the data was extremely limited and subjective.

16.        Ms Macqueen’s subsequent reports were prepared after she had spoken with Mrs Ryan.  She was able to confirm the post-war animal fat content was significantly higher than it was reported to be in pre-war years.  She estimated the animal fat content in the veteran’s diet as described by Mrs Ryan as being:

Pre-war: 46gm

During war: 126-158gm

Post-war: 226gm

17.        Again, she noted the lack of detail concerning the earlier diet and found it difficult to make a direct connection between war service and any dietary change.  As noted above, she completed a table purporting to provide details of the pre-war dietary regimen.  She estimated that a young man working as a farm hand would require some 16,000 kj per day and, in moderate activity, some 12,000 kj.  She took time to recalculate her figures and concluded that the data in the table reflected something in the order of 8,000 kj.  In her evidence, she said the process was speculative and subjective and noted that, if the animal fat content in the pre-war data was doubled, this would yield a daily level of 11,500 kj.

18.        Ms Macqueen agreed that Mrs Ryan had overestimated the amount of food and animal fat consumed by the veteran in post-service years. She also agreed with the observations of Ms Williams that, on the data given, the veteran would have gained a very significant amount of weight over time.  For the purposes of the analysis, she assumed that, if the overestimate had been in the order of some 50%, this would, nevertheless, provide an animal fat content of 113gm which would still represent an increase as required by the Statements of Principles.

Procedure

19.        The procedure to be adopted in determining whether or not a particular condition which caused death arose out of, or was attributable to, any eligible war service the veteran rendered was set out by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 82 - 83 in the following terms:

“(i)       The 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.

(ii)       If the material does raise such hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). ...

(iii)      If 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.

(iv)      The Tribunal must then proceed to consider under 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, ... 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.”

Step 1: - Hypothesis

20.        The first step requires that there be material which points to an hypothesis connecting the condition which caused death with service.  Mr Clutterbuck, for the applicant, submitted that the veteran’s prostate cancer was attributable to his increased consumption of animal fat in his post-service years which, in turn, was attributable to the nature of his diet during service.  I accept that this constitutes an hypothesis of a connection to service.

Step 2: - Statement of Principles

21.        The second step requires identification of the relevant Statement of Principles for malignant neoplasm of the prostate.  At the date of Mrs Ryan’s claim, this was Instrument No. 84 of 1999 as amended by Instrument No. 69 of 2002.  Since then, that has been repealed and replaced by Instrument No. 28 of 2005 which came into effect on 18 September 2005. Consideration must be given to the claim under each of those Instruments.

Step 3: - Reasonableness of the Hypothesis

22.        The third step requires consideration of whether the hypothesis raised is a reasonable one for the purposes of subsection 120(3) of the Act.  This step is not concerned with proof of the claim.  Rather, it relates to the question of whether there is some material which calls for a determination under subsection 120(1) of the Act: see Bushell v Repatriation Commission (1992) 175 CLR 408 at 415. This requirement will be met if an hypothesis fits or is consistent with the template provided by a relevant factor and associated definition in the Statement of Principles. These read:

Instrument No.84 of 1999 (as amended)

(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

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;

Instrument No.28 of 2005

(c) increasing animal fat consumption by at least 40% and to at least 50gm/day, and maintaining these levels for at least five years within the twenty-five years before the clinical onset of malignant neoplasm of the prostate;

animal fat means fat contained in or derived from:

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

(b) dairy products; or

(c) eggs from birds;

23.        If the hypothesis under consideration is reasonable, it will then be necessary to consider the fourth of the Deledio steps.  

Submissions

24.        Mr Clutterbuck submitted that there was material which pointed to the increase in the veteran’s animal fat consumption by at least 40% to at least 50g per day for the period required under the later Statement of Principles.  He noted the variations in the estimates of pre and post-war consumption patterns but submitted that the Tribunal should not adopt a technical approach to assessing the veteran’s diet and, in that regard, he referred to the Tribunal’s decision in Keenan and Repatriation Commission [2000] AATA 707. He referred to a whole range of emotional factors which may occur during military service and which may be relevant to the extent to which a particular diet impacts upon an individual. Mr Clutterbuck submitted that only if the Tribunal were satisfied beyond reasonable doubt that the material before it did not suggest section 8 of the Act was applicable would it be the case that it could determine that the death of the veteran due to his prostate cancer was not war-caused.

25.        Mr Smith submitted that this case was one which involved an absence of reliable data in pre-service years and an absence of accurate data in post-service years.  He submitted that, in order for the advanced hypothesis to be reasonable, there must be material which points to it rather than material which merely leaves the hypothesis open: Repatriation Commission v Bey (1997) 79 FCR 364. He submitted that there is no evidence of the dietary patterns of the veteran before his service. He noted that the veteran left school at 14 years of age and then worked on local dairy farms so that there was no evidence he was consuming a regular diet associated with his mother’s food preparation. Mr Smith also noted that the veteran had told Mrs Ryan he had always been hungry on service, and yet was supplied with meat products. He submitted that this suggested the veteran may well have enjoyed more of these kinds of products before service than he did in his service years. Mr Smith submitted that care should be taken when relying upon the evidence of Ms Macqueen in this matter. This was because she appeared to simply apply random increases or decreases in fat consumption in order to arrive at particular consumption figures.

Consideration – reasonableness of the hypothesis

26.        In Keenan (noted above) the veteran had married his wife in 1942 and she was able to provide an uninterrupted history of consumption for 55 years from the end of the war.  In the veteran’s case, some four years elapsed after he completed his RAN service before he got married and, for part of that time, the veteran lived in Brisbane whilst Mrs Ryan was in Newcastle.  Also, in Keenan, the evidence of variations in the diet during service including a period when Mr Keenan was a coast watcher behind enemy lines when he appeared to have low animal fat content and then subsequent periods where he adopted the diet of the United States forces to which he was attached as a liaison officer.  The evidence in that case was that the fat content of the American diet would have increased significantly and the evidence also was the he had become a meat eater as a result of serving with United States forces.  There is no evidence before the Tribunal to indicate that these were the circumstances of the veteran. 

27.        I accept the submission of Mr Smith concerning the analysis conducted by Ms Macqueen.  The calculations in her report of 46gm animal fat content pre-war and 226gm post-war are sufficient to meet the requirements of the Statement of Principles.  However, as I understood her evidence, she did not accept the correctness of the latter figure and was willing to discount that by 50% to 113gm.  Also, in order to bring the energy content of the veteran’s pre-war diet to a level which would be expected for a young man working on a dairy farm, she doubled the animal fat content of that pre-war diet.  This would suggest an animal fat content of 92gm.  When that figure is compared with her adjusted post-war animal fat content figure, the period does not point to a 40% increase. 

28. I have noted the submission by Mr Clutterbuck in relation to section 8 of the Act. However, that only applies once a reasonable hypothesis of a relevant relationship has been raised. For that to be done, as submitted by Mr Smith, there must be material which points to the factor in either of the two Statements of Principles and not merely material which leaves the factor open. The material before me is entirely speculative as to pre-service consumption patterns of the veteran and unreliable in relation to his post-service consumption patterns. Such material does not enable a meaningful comparative analysis of the factors in either of the Statements of Principles to be undertaken and, therefore, does not point to either of those factors being met. That is also the case with the material linking any post-service fat consumption with service. Both Ms Macqueen and Ms Williams considered that there was no more than a possibility that the consumption of service food would be responsible for a post-service continuation of consumption of similar food products. Ms Williams’ evidence was that there was no chemically oriented addiction with food which might otherwise explain the need to continue with certain types of food. Their evidence does no more than leave the hypothesis open; it does not point to a situation which fits the template of the factor in either Statement of Principles. The hypothesis advanced on Mrs Ryan’s behalf is not reasonable as required by s 120(3) of the Act.

Step 4: - Is Death War-caused?

29.        As no reasonable hypothesis of a relevant relationship is raised between carcinoma of the prostate and the veteran’s eligible service, it follows that his death from that condition is not war-caused and it is not necessary for consideration to be given to the fourth of the Deledio steps.

Decision

30.      The Tribunal affirms the decision under review.

I certify that the 30 preceding paragraphs are a true copy of the decision and reasons for the decision herein of Mr RG Kenny, Member  

Signed:         ………………………………….

Associate

Date of Hearing  24 May 2007 and 6 July 2007
Date of Decision  8 August 2007
For the Applicant  Mr R Clutterbuck of Counsel
  Sciaccas, Lawyers

For the Respondent                  Mr M Smith, Departmental Advocate