Schuman and Repatriation Commission

[2004] AATA 1228

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1228

ADMINISTRATIVE APPEALS TRIBUNAL
  )           No N2001/163

VETERANS’ APPEALS DIVISION		)
Re		PATRICIA MELBA SCHUMAN

Applicant

And   REPATRIATION COMMISSION

Respondent

DECISION

Tribunal   Robin Hunt, Senior Member

Date22 November 2004           

Place  Sydney

Decision   The decision under review is affirmed.

….…..[sgd Robin Hunt]……
  Senior Member  

CATCHWORDS

VETERANS’ ENTITLEMENTS – eligible war service – claim that veteran’s death due to eligible war service – pre/post war diet - increasing animal fat consumption – reasonable connection between disease and war service – the role of s119 of the Veterans Entitlement Act 1986 is not to invent evidence which may serve to establish the connection.

Veterans’ Entitlement Act 1986 (Cth) ss119, 120

Statement of Principles: Nos 85 of 1999, 70 of 2002

Repatriation Commission v Hill (2002) 69 ALD 581

Deledio v Repatriation Commission (1997) 47 ALD 261

Repatriation Commission v Gosewinckel (1999) 59 ALD 690

Connors v Repatriation Commission (2000) 59 ALD 61

Mason v Repatriation Commission [2000] FCA 1409

Repatriation Commission v Smith (1987) 15 FCR 327

Beale v AAT & Repatriation Commission (1998) 82 FCR 132

REASONS FOR DECISION

22 November 2004               Robin Hunt, Senior Member

background

1.    On 20 August 1999, Mrs Schuman, the Applicant, made a claim for a service pension consequent on the death on 18 September 1996 of her late husband, Geoffrey Schuman, a veteran, then aged 76 years (T4, ff 14-18). Mrs Schuman’s application was refused and the Veterans Review Board (the Board) affirmed the refusal decision on 6 November 2000. The Administrative Appeals Tribunal (the Tribunal) is reviewing the Board’s decision. The Tribunal invited the parties to a hearing on 15 October 2004 and they requested that the Tribunal make a decision on the papers. The Tribunal has decided to affirm the decision that the death of Mr Schuman was not war-caused and that his widow, the Applicant, is therefore not entitled to the pension sought.

evidence and submissions

2.    It is common ground that Mr Schuman served in the Royal Australian Air Force (RAAF) from 13 January 1942 until 25 March 1946, in Australia only. The Respondent accepted that this service is eligible war service under the Act (T3, ff 1-2).

3.    Before the Tribunal is a report dated 4 August 2001 provided by Mr W Friderich which he furnished to the Respondent.  Mr Friderich stated that he prepared the report by reference to Statement of Principles (SoP) concerning malignant neoplasm of the prostate, Nos 95 of 1995 and 191 of 1996, the Tribunal’s section 37 documents, a statement by the Applicant and an interview with her on 27 July 2001. The Respondent stated at paragraph 17 of its Facts and Contentions that it relied on this report and on the ‘definitive research paper’ of Dr Ruth English AO, entitled “Animal Fat in the Australian Diet Including the Services Ration in World War 2”, August 1998, which also is before the Tribunal. The Respondent additionally submitted that Dr English holds a pre-eminent status in nutrition, the field of research relevant to this claim, and noted the Respondent’s expert, Mr Friderich, deferred to her expertise in his report.  Further, as the Applicant conceded in paragraph 12 of her Statement of Facts and Contentions, when calculated on the most favourable evidence, the increase in fat consumption (66g pre-service diet according to information given at the interview and 90g post-service diet according to the statement), did not reach the level required to meet the SoP. The possible increase shown is 36% more fat content and the Respondent denied a calculation attracting the operation of the SoP could be relied upon in this case. 

4.    The Applicant argued that the increase in fat content was marginally less than the 40% requested under the SoP and that section 119 of the Veterans’ Entitlement Act 1986 (the Act) might be used to find the SoP satisfied. The Respondent contended that section 119 could not be used in this way to enhance the Applicant’s case where there was no independent evidence of the claim made. See further below.

5.    The cause of death indicated on the death certificate (T4 f 19) was:

(a) chronic renal failure – 11 months;

(b) bilateral ureteric obstruction 11 months; and

(c) adenocarcinoma of prostate – 5 years.

5.    The Applicant contended that Mr Schuman died from renal failure due to his having prostate cancer. She relied on the medical report provided by his G P, Dr Lim (T5 f29).  Dr Lim concluded in his report said, ‘The underlying cause of this man’s death was undoubtedly disseminated adenocarcinoma of the prostate.’ The Respondent referred to Dr Lim’s diagnosis and dealt with the claim on the basis that the Applicant must first show that Mr Schuman’s carcinoma of the prostate bore a causal relationship to his service. The Respondent contended that the material before the Tribunal could not give rise to a connection to the reasonable satisfaction of the Tribunal between Mr Schuman’s eligible war service and his death. In particular, the material did not give rise to all the essential elements of the relevant SoP being met.

6.        The parties both noted that there is a governing SoP concerning death from malignant neoplasm of the prostate, Instrument No. 85 of 1999, as amended by No 70 of 2002.  The Applicant has also suggested that Instrument No. 96 of 1995, as amended by Instrument 192 of 1996, might apply if more beneficial to the Applicant but did not indicate any manner in which the 1995/1996 Instrument might be more beneficial.  

7.        The only SoP factor about which the parties presented arguments and evidence related to factor 5(b) of Instrument No. 85 of 1999, although the elements were set out and described by the Respondent in slightly different terms and as factor 5(c) in the Facts and Contentions. The Applicant did not name the specific factor of the SoP but both parties made submissions about Mr Schuman’s diet and its animal fat content, which is the point of factor 5(b).  

8.        The Applicant claimed she had knowledge of Mr Schuman’s pre-war diet because she had known members of his family since 1944 although she did not meet Mr Schuman until 1950. She contended Mr Schuman’s defence service contributed to his death as, during this period, he would have consumed food from the standard ration scale for the area in which he served and this resulted in an increased animal fat content in his diet. She further referred to the standard army ration table reproduced at (T13 f62).  As further evidence of his fatty diet during service, the Applicant pointed to an increase in Mr Schuman’s weight recorded during his service. In addition, she noted reference to this phenomenon in the report of Mr W Friderich dated 4 August 2001 as well as in the decision of the Board. She contended that Mr Schuman’s post-marriage diet was less fatty than his family meals in 1946 to 1950 but still contained a greater component of animal fat than desirable and that this must have been due at least in part to his developing a liking for such food during his war service. The Applicant claimed she determined the family diet after the war service ended but that this situation was not inconsistent with her claim that Mr Schuman expressed a preference for and ate fatty food.

9.        Mr Friderich in his report dated 4 August 2001 discussed at length the information Mrs Schuman gave him about her deceased husband’s diet. He noted that Mr Schuman did put on weight while performing military service. However, he also noted that, by Mrs Schuman’s own account, socio-economic factors and technological changes increased the availability and accessibility of high fat food. He did not draw the conclusion that Mr Schuman sought fatty food in preference to other food. He observed that as all of Mr Schuman’s siblings had passed away, no one with personal experience of the family diet was available to give this information.

discussion of evidence and findings

10.      For a SoP factor to be raised by the material before the Tribunal, the material must point to every essential element of the factor: Repatriation Commission v Hill (2002) 69 ALD 581. Also see Deledio v Repatriation Commission (1997) 47 ALD 261 at 274‑275, Repatriation Commission v Gosewinckel (1999) 59 ALD 690 at 704 per Weinberg J, and Connors v Repatriation Commission (2000) 59 ALD 61 at 68‑70. Although Hill’s case refers to the reasonable hypothesis / beyond reasonable doubt standard of proof, in a case such as this in which the ‘reasonable satisfaction’ standard applies, the Tribunal similarly must be reasonably satisfied, that is, on the balance of probabilities, that all the essential elements of the SoP factor have been established.

11.      Both parties have based their arguments on animal fat consumption and the impact of this on development of malignant neoplasm of the prostate. Factor 5(b) of SoP 85 of 1999, as amended in 2002, reads that, to enable a finding on the balance of probabilities that death is caused by service rendered by the person, the factor must exist of “increasing animal fat consumption by at least 40% and to at least 70gm/day for at least 25 years before the clinical onset of malignant neoplasm of the prostate”.  The SoP, as amended, defines ‘animal fat’ 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;”

12.      To satisfy myself as to the test in factor 5(b), I have examined the report of the consultant dietician, Mr Friderich, dated 4 August 2001, the research paper of Dr Ruth English AO, and the written statement of the Applicant about her knowledge of Mr Schuman’s diet pre and post war. I further note that the Applicant has conceded that the increase in Mr Schuman’s fat consumption did not reach the level of 40% required by the SoP.

13.      While it is true that the passage of time has made it difficult to ascertain with complete accuracy just what the animal fat component of Mr Schuman’s diet was, there is adequate evidence in my view of the most likely diet during and attributable to service. I prefer to rely on the authenticated sources available, that is, Mr Friderich’s report and Dr English’s research than the statement which the Applicant has made from her recollections and surmises about Mr Schuman’s diet before she met him. I do not consider that it is unduly difficult to ascertain Mr Schuman’s pre-war diet to the standard of proof expected of the Tribunal. As the Respondent says, typical civilian and military diets, on the best information available, in the lead up to and during World War II, contained animal fat in excess of 70 grams per day. I find, therefore, on the balance of probabilities that Mr Schuman’s death was not caused by the service he rendered. The Applicant has not shown that the factor exists of “increasing animal fat consumption by at least 40% and to at least 70gm/day for at least 25 years before the clinical onset of malignant neoplasm of the prostate”.

14.      The Applicant asked the Tribunal to have section 119(1)(h) in mind in assessing compliance with the SoP in view of the inherent difficulties in recalling circumstances that existed many years ago. The Board had noted in its reasons for decision that reconstructing Mr Schuman’s pre-war diet required a degree of speculation.  The Respondent countered that any deficiency in evidence could not be remedied by this provision, it being a procedural provision. I note that there is probative evidence presented in Dr English’s report and sources raised by the Respondent in the statement of facts and contentions. In my view, this is more reliable evidence than reconstructions and recollections of Mrs Schuman. Further, in Mason v Repatriation Commission [2000] FCA 1409, Weinberg J explained the limited role of section 119 in cases where there are gaps in the evidence. The provision should not be used to establish a possible connection between the disease and war service, as His Honour explained at paragraph 75:

‘Both parties noted that it is not the function of s 119(1) to fill in gaps, where the evidence does not assist the applicant’s case. This is of course correct. The function of s 119(1) is set out in Repatriation Commission v Bey (1997) 79 FCR 364 where four judges of a five-judge Court said at 373-4:

“... in order for the hypothesis advanced by the respondent to be reasonable, there must be material pointing to a connection between his disease and war service. The material either points to a connection or it does not. If it does not, the deficiency cannot be remedied by resort to a procedural provision such as s 119(1)(g). The requirement to act according to substantial justice does not replace the Tribunal’s obligation to act in accordance with law. Paragraph (h) of s 119(1) is a provision of the same character as par (g): see the words which introduce it – ‘without limiting the generality of the foregoing’. Thus, like par (g), it does not authorise the Tribunal to depart from the meaning of provisions of the Act as expounded by judicial decisions.” (footnotes omitted, emphasis added [by Weinberg J])

I am satisfied that the applicant cannot rely on s 119(1)(g) or (h) in establishing that the AAT erred in its decision. In the AAT’s view, Mr Mason’s evidence simply did not point to a connection between his lumbar spondylosis and war service, as required by the SoP. The role of s 119 is not to invent evidence which may serve to establish that connection. Inevitably cases of this type will involve problems of remembering details of events, and s 119(1)(h) is designed to ensure that those matters are taken into account. Those matters are not, however, to prevail over the structure and text of the remaining provisions of the VE Act.’

15.      As well, I take note that Beaumont J in Repatriation Commission v Smith (1987) 15 FCR 327 at p 335, held that decisions of the Tribunal must be based on ‘material that is relevant and logically probative’, and that there is ‘a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other’. I agree with the Respondent that the combined effect of these insufficiencies in evidence prevents me from being reasonably satisfied that Mr Schuman’s death from malignant neoplasm of the prostate arose out of or was attributable to his service in the RAAF in World War 2.

16.      Again, the minimum requirements of the SoP must be met and it is not sufficient that Mr Schuman’s diet during and after eligible service may have been marginally below the fat content specified in factor 5(b).  I also cannot delay a decision in anticipation of the possible release of a new SoP by the Repatriation Medical Authority: Beale v AAT & Repatriation Commission (1998) 82 FCR 132; McMillan & Anor v Repatriation Commission (1998) 81 FCR 45. In addition, see Re Seale & Anor and Repatriation Commission [2004] AATA 700, where Deputy President Purvis refused such an application and explained that the Tribunal must act upon the law as it is at the time of its decision making. His Honour distinguished the situation were a law is being clarified or construed by an appellate body.

17.      It follows that the Tribunal affirms the decision under review.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Ms R Hunt, Senior Member

Signed:     ….....…....................................

Associate: Reuben Mansour

Date of Hearing  15 October 2004
Date of Decision  22 November 2004