Sharpe and Repatriation Commission (Veterans' entitlements) - [2018] AATA 173

Sharpe and Repatriation Commission (Veterans' entitlements) [2018] AATA 173 (14 February 2018)
Division:VETERANS' APPEALS DIVISION
File Number: 2015/1684
Re:Azalea Sharpe
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:14 February 2018
Place:Melbourne

The decision under review is affirmed.
............................[sgd]............................................
Senior Member
VETERANS’ AFFAIRS – war widow’s pension – operational service – whether veteran’s death was war-caused – Statement of Principles concerning Malignant Neoplasm of the Prostate – whether Prostate Cancer caused by increased consumption of animal fat during service – whether reasonable hypothesis connecting death of veteran with service – cause of death dementia – material found not to raise reasonable hypothesis – veteran’s death not war-caused – decision under review affirmed
Legislation
Veterans’ Entitlements Act 1986 (Cth); ss 5E, 8, 11, 13, 14, 120, 120A, 138, 196, 196A, 196B
Cases
Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408
Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564
Collinsv Repatriation Commission [2009] FCAFC 90; (2009) 177 FCR 280
Dunlop v Repatriation Commission [2003] FCAFC 201
East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517
Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363
Forrester v Repatriation Commission [2013] FCA 898
Hill and Repatriation Commission [2009] FCAFC 91; (2009) 177 FCR 434
Meehan v Repatriation Commission [2001] FCA 597; (2001) 64 ALD 366
Repatriation Commission and Hancock [2003] FCA 711; (2003) 37 AAR 383
Repatriation Commission v Bey [1997] FCA 1347; (1997) 79 FCR 364
Repatriation Commission v Codd [2007] FCA 877; (2007) 95 ALD 619
Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82
Repatriation Commission v Towns [2003] FCA 1262; (2003) 38 AAR 77
Secondary Materials
Statement of Principles Concerning Malignant Neoplasm of the Prostate, No.28 of 2005 (as amended by No.70 of 2012)
Statement of Principles Concerning Malignant Neoplasm of the Prostate, No.53 of 2014 (as amended by No.19 of 2017)
English, R., (1998), Animal Fat in the Australian Diet Including the Armed Services’ Rations in World War 2: A Scientific Review for the Department of Veterans’ Affairs, August 1998
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
14 February 2018
INTRODUCTION

Mr John Sharpe was a veteran of the Second World War. He came from a farming background before enlisting into the Australian Army in 1942, where he served as a driver and mechanic. He rendered eligible operational service in Papua New Guinea from June 1943 until December 1945, before returning to Australia to run his own farm. Mr Sharpe met his wife Azalea in 1947. They married in 1949 and remained together for over 64 years until he passed away on 12 February 2013 at the age of 92. His Death Certificate[1] records cause of death as:
‘(1)(a)   Dementia, 2 years
(b)    Prostate cancer, 3 years
(c)    Dehydration, 2 weeks’
[1] Ibid, p.9
On 15 April 2014 Mrs Sharpe made a claim…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] AATA 173
Decision Date: 14 February 2018

CaseChat Overview and Summary

This matter concerned an appeal by Mrs Azalea Sharpe against a decision of the Repatriation Commission concerning her late husband, Mr Sharpe. Mrs Sharpe sought a pension on the basis that her husband's death from prostate cancer was war-caused, arising out of his eligible war service during the Second World War. The core of the dispute revolved around whether Mr Sharpe's diet during and after his military service could be causally linked to his prostate cancer.

The legal issues before the court were whether Mr Sharpe's death arose out of, or was attributable to, his eligible war service, and what standard of proof applied to such a determination. Specifically, the court was required to consider the provisions of the *Veterans' Entitlements Act 1986* (Cth) concerning war-caused death, the definition of a dependant, and the evidentiary requirements for establishing a connection between service and death. The court also had to assess whether a reasonable hypothesis existed, within the meaning of section 120A of the Act, connecting Mr Sharpe's prostate cancer to his war service, particularly in light of the applicable Statement of Principles.

The court found that the evidence presented, primarily from Mrs Sharpe, regarding Mr Sharpe's diet before, during, and after his war service, was insufficient to establish a reasonable hypothesis connecting his prostate cancer to his service. While Mrs Sharpe contended that her husband's service diet was high in animal fats and significantly different from his pre-service diet, the court noted that this was largely based on assumption, speculation, and inference, with no direct evidence available from Mr Sharpe himself. The court concluded that, at best, the material pointed to a possibility rather than a reasonable hypothesis as required by the Act.

Consequently, the decision under review was affirmed, meaning Mrs Sharpe's claim for a pension was dismissed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

There is no direct evidence available from Mr Sharpe, or first-hand evidence from others, regarding his food consumption prior to or during the War, or before meeting Mrs Sharpe in 1947. Mrs Azalea Sharpe and her daughter, Mrs Narelle Gault, gave evidence by phone and were cross-examined. Evidence of Mrs Azalea Sharpe In her statement Mrs Sharpe submits that she first met her husband in 1947, two years after he discharged from the Army. They married in early 1949.[8] She describes her husband as a lifetime abstainer from alcohol and tobacco products[9] and contends his death was partly caused by prostate cancer, because ‘there is evidence to suggest…[it]…was caused by his service diet.’[10] In relation to her husband’s diet prior to Army service, she states:‘…even though I was not aware of his food intake, I can only assume and make a comparison to the diet of my father and brother. My brother’s and father’s diet consisted of; meat, lamb, beef and poultry, vegetables, full cream milk, cream, chicken eggs and home-made cakes and sweets. I think John’s family were not as prosperous as my family, meaning he would not have had access to such a wide variety of foods; however, he would still have had access to rabbits, fresh fruit and vegetables…I don’t think that he would have had a high intake of animal fats prior to his service, as it would not have been readily accessible to him at the time. He had a simple, but wholesome diet before his service.’[11] ‘my husband’s parents and other close relatives are deceased, thus making it impossible for relevant information regarding his diet, prior to his service, to be gathered…To the best of my knowledge there is no one alive today who would have known him during his pre-service years, or the three years between his leave from the Australian Army and our marriage.’[12][8] Exhibit A1, Statement of Evidence from Azalea Sharpe dated 14 October 2015, paras 3-5.[9] Ibid, para 18.[10] Ibid, para 4.[11] Ibid, para 6-7.[12] Ibid, para 9. In comparison, Mrs Sharpe submits that her husband’s diet while serving in the Army was ‘relatively high in fat’ and ‘almost the complete opposite in content to his pre-service diet.’[13] She says his duties as a driver and mechanic were such that he was unable to maintain the structured meal regime he was accustomed to on the farm. She contends the nature of his war service was such that he ‘may have developed a diet that was high in animal fats.’[14] [13] Ibid, paras 10-11.[14] Ibid, para 12. Mrs Sharpe submits that in the years after her husband’s discharge from the Army and prior to their marriage in 1949, she does not believe his diet ‘differed from his service diet in terms of animal fat content.’[15] After they married, she describes preparing his food according to his taste, which reflected a preference for animal fats that ‘he continued to eat in large quantities for the rest of his life.’[16] Mrs Sharpe says she prepared ‘fresh wholesome meals consisting of fresh meat, animal fat products such as cream, full cream milk and poultry products such as eggs.’[17] She states her husband ‘rarely spoke about his experiences during his Army service but did say enough such that [she] was aware of his aversion to tinned foods of whatever type.’[18] She submits that his diet after their marriage ‘consisted of much more than 50gm of animal fat per day and was definitely more than the 40% he consumed prior to enlistment.’[19][15] Ibid, para 14.[16] Ibid.[17] Ibid.[18] Exhibit R1, p11.[19] Ibid.

Decision

Reasons for decision

Although my finding regarding cause / kind of death obviates the need to consider the connexion between Mr Sharpe’s prostate cancer and war service, I have considered this issue for completeness. At best, the material points to a possibility that is overly-reliant on assumption, speculation and inference. It does not give rise to a reasonable hypothesis within the meaning of the Act. DECISION It therefore follows that the decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

Operational Service. The expression ‘operational service’ is defined at sections 6 - 6F of the Veterans’ Entitlements Act 1986 (Cth) (the Act). Mr Sharpe’s service during the Second World War constitutes eligible service under the Act. Section 8 of the Act provides for circumstances where the death of a veteran is taken to be war-caused. Section 8(1)(b) applies where ‘the death of the veteran arose out of, or was attributable to, any eligible war service...’ Section 13(1) of the Act provides that where a veteran’s death is war-caused, the Commonwealth is liable to pay a pension ‘by way of compensation to the dependants of the veteran.’ Section 14(1) of the Act provides that a dependant of a deceased veteran may make a claim for a pension. Section 11(1) defines the term ‘dependant’ to include ‘the partner’ or ‘a widow’ of the veteran, ‘other than a widow…who marries, re-marries or enters into a de facto relationship.’ Section 5E of the Act defines the term ‘widow’ to include a woman ‘who was the partner of a person immediately before the person died.’ Standard of Proof. The standard of proof to determine the cause of death of a veteran is the balance of probabilities. As Mrs Sharpe’s claim relates to the operational service of her husband, the applicable standard of proof regarding any connexion between his service, the subsequent diagnosis of prostate cancer and cause of death is provided by sections 120(1) and 120(3) of the Act:(1)Where a claim under Part II for a pension in respect of…the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the…death of the veteran was war-caused…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.(2)...(3)In applying subsection (1) or (2) 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)…;(b)…; 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…death with the circumstances of the particular service rendered by the person.Note:This subsection is affected by section 120A. Section 120A of the Act is enlivened because Mrs Sharpe’s claim was lodged after 1 June 1994. If prostate cancer is found to be a cause of Mr Sharpe’s death, I am required to assess the reasonableness of the hypothesis connecting his prostate cancer with service, against the relevant Statement of Principles (SoP). Section 120A(3) of the Act provides:(3)For the purposes of subsection 120(3), a hypothesis connecting…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... that upholds the hypothesis.