Sharpe and Repatriation Commission (Veterans' entitlements)
[2018] AATA 173
•14 February 2018
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 MemberVETERANS’ 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, 196BCases
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 for widows’ pension, contending that the death of her husband was service-related.[2] The hypothesis she advanced was that as a result of Mr Sharpe’s service in New Guinea, he developed a preference for food with a high animal fat content, which led to his prostate cancer and contributed to his death. On 29 April 2014 her claim was refused by a delegate of the Repatriation Commission (the Commission).[3] On 10 February 2015 the Commission’s decision was affirmed by the Veterans’ Review Board (VRB).[4] Mrs Sharpe seeks review of the VRB decision by the Administrative Appeals Tribunal.[5]
[2] Ibid, pp.1-11.
[3] Ibid, pp.79-84.
[4] Ibid, pp.B1-B6.
[5] Exhibit R1, T-Documents lodged 15 May 2015, pp.B1-B6.
The hearing was held on 22 January 2018. Mrs Sharpe was represented by Mr Andrew Yuile of counsel, instructed by De Marchi & Associates. The Commission was represented by Mr Ken Rudge, an advocate of the Department of Veterans’ Affairs.
For the reasons that follow, the decision under review is affirmed.
RELEVANT LEGISLATION AND AUTHORITIES
In considering this application, I am cognisant of the beneficial intent of the Act. As observed by Mortimer J in Forrester v Repatriation Commission[6] at [19]:
‘In its current form, the Act requires the decision-maker to undertake a process which Parliament intends to be beneficial to applicants: see Deledio v Repatriation Commission (1997) 47 ALD 261 at 262-263 per Heerey J; East 16 FCR 517 at 518. It is not a process intended to put insuperable hurdles in the way of the veteran, while still ensuring that the requisite causal connection between the veteran’s war service and the disease, injury or death is established. The scheme imposes particular processes and standards of proof to establish the requisite connection, but the use of the double negative in s 120(3), combined with the imposition of the highest standard of satisfaction known to law, makes plain that the process of establishing that causal connection is intended to operate beneficially towards applicants’ claims.’
[6] [2013] FCA 898.
Section 138(1) of the Act provides that in conducting a review, decision-makers are not bound by technicalities, legal forms or rules of evidence. Specifically, decision-makers:
(a)…; and
(b)shall act according to substantial justice and the merits and all the circumstances of the case and, 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; or
(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 Forces, or a member of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities.
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.
As held in Dunlop v Repatriation Commission [2003] FCAFC 201 at [33], there is no legal necessity for the AAT to apply a step-by-step mechanistic process when considering the reasonableness and validity of a proposed hypothesis. That said, the stages established by the Federal Court in Repatriation Commission v Deledio[7] (Deledio) are instructive, with the Court stating at [97]-[98]:
‘…we would restate the course which the tribunal is to take in a case, such as the present, (that is, 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 as follows:
1.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.
2.If 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.
3.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.
4.The 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.’
[7] Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82.
Section 196A of the Act establishes a Repatriation Medical Authority (RMA), which is an independent statutory authority that determines SoPs for any disease, injury or death that could be related to military service. SoPs are based on sound medical-scientific evidence and state factors relating to service that must exist in order to cause a particular kind of disease, injury or death. SoPs are binding on decision-makers at all levels, including this Tribunal.
Section 196B(2) of the Act provides that:
(2)If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a)operational service rendered by veterans; or
…
The Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d)the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
This is elaborated upon at section 196(14) of the Act:
(14)A factor causing, or contributing to, an injury, disease or death is “related to service” rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b)it arose out of, or was attributable to, that service; or
(c)…
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
…
(f)in the case of a factor causing, or contributing to, a disease – it would not have occurred:
(i)but for the rendering of that service by the person; or
(ii)…
The SoP relevant in this matter are SOP No. 28 of 2005 (as amended by No. 70 of 2012) and SoP No. 53 of 2014 (as amended by No. 19 of 2017). Both SoP are titled Malignant Neoplasm of the Prostate.
THE ISSUES
The threshold issue for determination is Mr Sharpe’s cause of death. If it is attributable to prostate cancer, I must then consider whether it attracts the relevant SoP.
EVIDENCE
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.
Mrs Sharpe could not initially recall when her husband was diagnosed with prostate cancer or dementia, but in response to questions agreed his prostate cancer was diagnosed in 1999. When asked about the effects of her husband’s prostate cancer, she referred to ‘special needles’ from time to time and regular blood tests. She noted that her husband woke at night to empty his bladder. In the period immediately after his diagnosis, Mrs Sharpe says her husband was capable of looking after himself and only woke about two times a night. But there was a progressive loss of bladder control, particularly in the year or so before his death, requiring her to frequently attend to him. She was ‘not sure’ but estimated he may have required her assistance 5-6 times per night during this time, which resulted in a lack of recuperative sleep for both of them. She said her husband’s energy levels in the last year or so of his life progressively deteriorated to the point where he was ‘exhausted’ all the time. She submits he became increasingly confused and talked about his war years, which he had not done previously.
Evidence of Mrs Narelle Gault
A statement from Mrs Narelle Gault, the youngest child of Mr and Mrs Sharpe was taken into evidence,[20] as was a four-page letter regarding the impact of prostate cancer on her father’s health.[21] In her statement Mrs Gault refers to discussions with her father about his life prior to enlisting into the Army and service in New Guinea. She says he lived and worked on his parent’s farm of approximately 600 acres, and that rabbits, fresh fruit and vegetables figured prominently in the family diet. She submits that in 2014 she contacted Mr Bob Sullings in New South Wales, who had been a tent mate of her father in New Guinea. She ascertained from Mr Sullings that the food her father consumed on operational service ‘was a far cry from the…basic but simple diet prior to enlistment which was made up of fresh fruit and vegetables grown on his family’s farm.’[22] Her father had told her that the nature of his duties was such that meal times were often erratic or non-existent. She recalls her father ‘was a man who enjoyed, and consumed plenty of meat, cream, milk and cheese,’ and that meat on the farm was ‘usually cooked in its own fat.’[23]
[20] Exhibit A2, Statement of Evidence from Narelle Gault dated 14 October 2015.
[21] Exhibit A3, Fax from Narelle Gault to Dino De Marchi dated 9 March 2016.
[22] Exhibit A2, para 7.
[23] Ibid, para 12.
Mrs Gault said that as her father’s health declined, her visits increased in frequency. She often stayed overnight to support her mother, particularly in the last year or so before her father’s death. She stated that the burden of care fell predominantly on her mother, with family assistance when available. Mrs Gault said her father did not discuss his prostate cancer with her, because ‘fathers rarely discuss these things with their daughters’ and her parents were of an older generation that ‘didn’t talk about these things.’ She only learned of his prostate cancer diagnosis from her mother approximately a year before he passed away. Nevertheless, she says her own observations while at her parents’ home were such that she considered his prostate cancer was making him very tired. She could not recall when she first noticed her father’s tiredness and reduced activity levels. In the last year of Mr Sharpe’s life, she recalls her parent’s frequently waking at night.
Mrs Gault recalled an occasion where her father told her he ‘didn’t feel well and was in pain,’ but she didn’t know what was wrong. She noticed his tiredness became progressively worse to the point he was unable to leave home, resulting in isolation. She was aware her father was receiving injections of some sort for his prostate cancer, but not what they were. Beyond that, she had no knowledge of the specifics of her father’s condition or the treatment he received. She contended, however, that his cancer became worse over time and may have resulted from a ‘blocked situation’ or ‘something major happening there.’ She submits this is based on her knowledge of another person close to her that suffered from prostate cancer. In response to questions, Mrs Gault said she was unaware if her father’s cancer had spread or caused a blockage, or how often or what type of treatment he received. As for his dementia, Mrs Gault could not recall when she became aware of its effects, stating ‘I can’t say a time, but there were certain things he couldn’t do – really right at the end.’ She stated that her parents did not mention her father’s dementia diagnosis either, because like his prostate cancer, ‘these were private things’ and the family ‘weren’t told.’
EXPERT EVIDENCE
I note that Mr Sharpe was medically examined prior to his discharge. Malaria, which he contracted in October 1943, was the only condition listed in an accompanying report as having arisen during his service.[24] The evidence suggests he remained in relatively good health throughout his life on the farm before retirement in 1997, with relatively infrequent medical attendances.
[24] Exhibit R1, p.88.
Prostate Cancer
In December 1998 general practitioner Dr J. Dyce made a notation in Mr Sharpe’s clinical notes provisionally diagnosing ‘Prostatitis – Prostatic Hypertrophy.’[25] Mr Sharpe was referred to Urologist, Dr Tim Nicholson, who performed a biopsy in March 1999 revealing ‘a small amount of prostate adenocarcinoma,’ for which intermittent hormone therapy was administered.[26] During subsequent consultations, Dr Nicholson noted a general absence of symptoms or complaints,[27] regularly updating Dr Dyce on Mr Sharpe’s condition, including on 21 May 2004 and then on 17 December 2004, where he stated:
21 May 2004:[28] ‘He has been well in this last year and denies any troublesome lower urinary tract symptoms and no haematuria. His PSA has only gone up slightly to 2.4 and I think we can continue to leave him off the hormone treatment. It is now nearly 2 years since his last Zoladex injection and there is a reasonable chance that he may not need any more treatment for the rest of his life…’
17 December 2004:[29] ‘I understand he is doing well and not having any major problems. His PSA is only slightly up to 2.9. I have reassured John that he can stay off the hormone treatment for now and I would not suggest that he needs to restart the hormone treatment until his PSA is above 10….I would be grateful if you could keep an eye on his PSA every six months and I would be happy to see him again if and when his PSA gets to above 10.’
[25] Exhibit R2, Clinical Notes from the Forbes Medical Centre, p.4
[26] Ibid. pp.168, 242-243.
[27] Ibid. p.245.
[28] Ibid. p.236.
[29] Ibid. p.235.
Subsequent blood tests ordered by Dr Dyce show that Mr Sharpe’s PSA stayed well below the reference limit imposed by Dr Nicholson.[30] For example, the highest PSA reading recorded in his blood results until June 2010 was 5.2.[31] It was only in February 2012, approximately a year before Mr Sharpe’s death, that his PSA level approached a point where attending physicians considered active treatment should be resumed.[32]
[30] Ibid. pp.107-10, 112, 123.
[31] Ibid, p.102.
[32] Ibid. p.85.
Two reports by Professor J.F. Cade, Emeritus Specialist in Intensive Care at the Royal Melbourne Hospital were admitted into evidence.[33] Professor Cade notes Mr Sharpe’s referral to urologist Dr Nicholson in late 1998 ‘with symptoms of prostatism,’ stating:
‘In early 1999, prostate biopsy was performed, and a small amount of adenocarcinoma was found in two of the specimens. Although treatment at this time was considered optional, Dr Nicholson recommended early hormonal therapy because of his obstructive symptoms. He was reviewed periodically over the years by Dr Nicholson, most recently in October 2012, at which time his PSA remained normal. No metastases or further obstruction were ever identified.
…
The cause of the veteran’s death was undoubtedly his dementia…In early 2013, the dementia was advanced and worsening, with agitation, restlessness, incontinence and finally refusal of all oral intake on 6 February. Under such circumstances, death must be imminent…He was prescribed palliative care, and two days later he died peacefully…
Prostate cancer was also listed on the death certificate as an antecedent condition. In my opinion this cannot be correct (and not just because prostate cancer cannot be an antecedent condition of dementia). It is because the patient’s prostate cancer, diagnosed 14 years earlier, was quiescent as recently as 4 months before he died and had never been found to be metastatic or recently obstructive. Thus there is no obvious way in which the veteran’s prostate cancer could have contributed to his death. I believe that it would have been more correct to record that this cancer (as in many older men), while of course present at the time of his death, did not contribute materially to that death.
The veteran died nearly 70 years after the end of his war service, and until recent years he appears to have been in good health…[34]
…
…Dr Nicholson, urologist, discharged the patient in 2004 (after 5 years treatment) and over 8 years before his death in 2013 because of the inconvenience of the long road trip. Thereafter, he was monitored by periodic PSA tests, which remained normal as recently as a few months before his death…At all events, no intrusive surgical or radiation therapy was given…Dr Nicholson reported that the patient did well with treatment. Thus it seems that his later nocturia would probably not have been due to progressive cancer, as the PSA remained normal and nocturia is a very common problem anyhow in older men (whether or not they have a prostate tumour).
However distressing the long-standing discomfiture described by the veteran’s daughter may have been, it is hard to see how it could have been causally related to his death. Thus…I could not identify any “obvious way in which the veteran’s prostate cancer could have contributed to his death”.[35]
[33] Exhibit R7, Report of Professor Cade dated 17 March 2016; Exhibit R8, Report of Professor Cade dated 13 May 2016.
[34] Exhibit R7.
[35] Exhibit R8.
Professor Cade said the Death Certificate was wrong in referring to prostate cancer as an antecedent cause of Mr Sharpe’s death, which was not possible. He said there was no mechanism by which prostate cancer, either active or inactive, could lead to dementia. Professor Cade opined that prostate cancer was an accompanying condition at the time of Mr Sharpe’s death, but was not a cause of death. Moreover, he pointed out that the Death Certificate’s reference to a three year diagnosis of prostate cancer was erroneous, given that Mr Sharpe had been diagnosed with the condition 14 years before his death.
Professor Cade stated that prostate cancer has a spectrum, from ‘malignant dreadful and quick growing, to small and indolent.’ He said it could be a cause of death in some patients, where it had metastasised into adjoining structures. In other patients, prostate cancer could be present but ‘not causing much mischief.’ He said the latter applied in Mr Sharpe’s case. The prostate cancer initially detected was ‘very small’ and the hormone treatment provided[36] was ‘purely optional.’ Professor Cade said it was unclear from the medical records how long the hormone treatment continued for, but that by 2001, Mr Sharpe’s initially abnormal PSA results were normal and remained so for many years. He said a follow-up CT report did not provide evidence of a ‘mass effect’ reflecting growth of the tumour or bony metastasis in the pelvis or adjacent lower spine, where prostate cancer typically spread. Instead, the CT only showed ‘arthritis and bony ageing.’ Given the specific circumstances of Mr Sharpe’s case, Professor Cade stated it was ‘impossible for prostate cancer to have caused or contributed to death.’
[36] Zoladex injections.
During cross-examination, Professor Cade noted the progression of Mr Sharpe’s blood tests and resultant PSA levels, stating that the reference levels for prostate cancer had changed over time. He said during 1999-2000, the upper limit of the normal PSA reading was 5.6, whereas in 2012 the upper limit for normal was 9. He agreed that Mr Sharpe’s PSA level rose to slightly above the upper limit for normal (9.1) on 17 February 2012,[37] but considered this could have been for a number of reasons, encompassing renewed tumour activity or a urinary tract infection. He agreed that Zoladex hormone treatment had been administered in February 2012, suspecting it was a precautionary measure, because the instruction in Mr Sharpe’s medical records was that further administration in six months was only to occur if his PSA rose to 10.[38] Professor Cade noted that by July 2012, Mr Sharpe’s PSA was again ‘totally normal’ at 6.6.[39] He opined the reduction may have resulted from the Zoladex, but considered it was ‘highly likely’ the earlier elevated reading resulted from another cause like a urinary tract infection.
[37] Exhibit R2, p.180.
[38] Exhibit R4, Clinical notes from the Forbes Hospital, p.14.
[39] Exhibit R2, p.159.
In relation to Mr Sharpe’s Nocturia, Professor Cade stated there were many possible causes and prostate cancer was one of them. Given the specific circumstances of Mr Sharpe’s case, however, he stated it ‘was not possible’ for cancer to be causing Nocturia from mid-2012, given it was quiescent at the time with normal PSA readings from July 2012 onwards. Moreover the CT of Mr Sharpe’s pelvis showed no increased mass or metastasis of his tumour. Professor Cade stated it was ‘not a plausible explanation’ that Mr Sharpe’s prostate cancer was causing Nocturia, which was also ‘very common in older men without cancer.’
In relation to the reported decrease in Mr Sharpe’s energy levels, Professor Cade said he couldn’t think of a mechanism by which Mr Sharpe’s prostate cancer could have had this effect. He opined that the sort of tumour Mr Sharpe had did not secrete an active hormone like more aggressive cancers, so he considered the possibility of a systemic effect resulting in reduced energy from his cancer as ‘remote.’
Dementia
In June 2012, following a reported 12-18 month history of cognitive change, Mr Sharpe was diagnosed with moderate to severe dementia by Dr William Thoo, a Specialist in Geriatric Medicine.[40] He reports a significant decline in Mr Sharpe’s cognition and mood since 2010, suspecting it may have had ‘a longer and more insidious onset.’[41] He assessed that Mr Sharpe’s Mini-Mental State Examination was ‘too low for Alzheimer’s therapies.’[42]
[40] Exhibit R2, pp.160-162.
[41] Exhibit R4, p.3.
[42] Ibid, p.6.
By 24 January 2013, Mr Sharpe was admitted to Forbes Hospital due to worsening dementia and the family’s inability to cope.[43] A bed became available and he was moved to Jemalong Residential Village (JRV) on 6 February 2013.[44] He progressively refused food and water and passed away six days later.
[43] Ibid, p.17.
[44] Ibid, p.29.
I note the reference in the clinical notes, both at Forbes Hospital and JRV, to Mr Sharpe having Prostate Cancer, but the care plan was almost entirely directed at dealing with the unfortunate consequences of his dementia. In his evidence at the hearing, Professor Cade stated that Mr Sharpe’s cause of death was undoubtedly dementia, which had been confirmed by specialist assessment and was at a very advanced stage by 2012. He said it was a common event in people with advanced neurological disease like dementia to not only refuse medication, but all oral intake – including food and water. He said dehydration, which was listed as a cause of Mr Sharpe’s death, was a complication of dementia and not an antecedent cause as might be inferred from the Death Certificate.
Professor Cade stated that the severity of Mr Sharpe’s dementia was such that a mechanism could be readily distinguished to dehydration, which was ‘one of the ways dementia can cause death.’ Professor Cade stated the reasons why a person refuses oral intake is multifactorial and although much emphasis was placed on hydration and nutrition in a high-level care environment, when patients were so terminal, they were not force fed.
Evidence of Dr Mann and Dr Volker
Reports by dietician / nutritionists Dr David Mann[45] and Dr Dianne Volker[46] were admitted into evidence. They did not give evidence at the hearing and were not cross-examined. Dr Mann’s report includes a dietary survey of Mrs Sharpe relating to the dietary intake of her husband after the War. These reports addressed the methodologies used to determine Mr Sharpe’s consumption of animal fat before the War and in New Guinea. In the absence of verifiable information, both reports relied on estimates of his dietary intake. In the case of Dr Mann, he utilised Australian National Dietary intake data as the basis of Mr Sharpe’s fat consumption prior to joining the Army.[47] Dr Volker used the 1936-1939 Survey of Household Budgets conducted by the Australian Commonwealth Advisory Council on Nutrition,[48] assessing that Mr Sharpe consumed 126 grams of animal fat per day prior to his service.
[45] Exhibit R3, Report of Dr Mann dated 29 February 2016.
[46] Exhibit A4, Report of Dr Volker dated 13 October 2015; Exhibit A5, Report of Dr Volker dated 15 November 2015.
[47] Exhibit R3, p.3.
[48] Exhibit A4, p.4.
Dr Mann’s report states in part:
‘Mr Sharpe had increased his animal fat intake from a pre-service level of 116.9g/day to 179.3g/day post-service. This represent an increase of 62.4g of animal fat/day or an increase of 53.3%, and this was sustained for a period of at least 5 years within the 25 years of onset of the prostate cancer.
…
It is the conclusion of this report that Mr John Sharpe satisfy the requirement of the Statement of Principles concerning Malignant Neoplasm of the Prostate – Instrument No. 53 of 2014, Factor 6(c) increase his animal fat consumption by at least 40% and to at least 50g/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.
…However, it is not possible to say that the increase in animal fat intake was due solely to his war service…
…
The factors that influence a person’s food preferences is multifactorial. The link between on-service consumption of animal fat and post-service animal fat is extremely tenuous even if there is an increase in the amount and percentage of the animal fat intake. Indeed, as indicated by Dr Ruth English,[49] there are numerous factors that determine the consumption of animal fat and to imply that a life time of increased animal fat intake is due to a brief exposure of on-service animal fat intake is highly speculative.
A person’s food selection and preferences can be determined by other factors such as; genetic tastes preferences, environmental factors, social, cultural, and education influences. Other factors such as; income, cooking ability, age, disability, globalisation, trade agreements, taxes levied on food, transport, urban development and government food policies can also interact to determine a person’s food preferences.
In addition, recent scientific studies have focussed on both the genetic and environment factors in the determination of a person’s food preferences, and it is now better understood that the genetic influence can be significant.
…
Mr Sharpe’s height, weight and girth measurements and photographs can in part, assist in determining his dietary habits and the reliability of dietary histories. However, a person’s appearance can give an idea as to whether a person is at a normal weight or overweight, but it does not indicate accurately, the person’s dietary habits and the reliability of dietary histories…
[49] See Dr Ruth English, 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.
Dr Dianne Volker’s report states that amongst the questions she had been asked to respond to, was ‘make an educated estimate of the late Mr Sharpe’s pre-service diet, by analysing photos and/or statements from other witnesses, and also taking into consideration the availability of food with high levels of animal fat.’[50] Her report makes assumptions, based on the evidence of Mrs Gault, that Mr Sharpe’s family ‘practiced self-sufficiency as much as possible, living on their own fruit and vegetables, own stock and rabbits when available.’[51] Additional assumptions are made in relation to age, weight, physical activity, and estimated energy requirements. Dr Volker concedes in her report that ‘[i]t has been recognised that assessment of food intake in the past has questionable validity’[52] and that her calculations represent a ‘population consumption pattern,’ absent any ‘individual differences.’[53] As a result, her assessment is at times caveated by terms like ‘it is quite conceivable that…’ Dr Volker considers that:
‘Given the gradual increase in animal fat content of the service rations, it is a reasonable hypothesis to expect a taste perception adjustment during this major life experience. Also, it is quite reasonable to consider the fact that a young man away from home in a very alien environment…to promise himself that if he survived the war, he would always consume fresh, flavoursome food, the direct antithesis of army rations.[54]
[50] Exhibit A4, p.5.
[51] Ibid.
[52] Ibid, p.6.
[53] Ibid, p.9.
[54] Ibid, p.12.
The fat consumption findings of Dr Mann and Dr Volker are summarised as follows:
DR MANN
DR VOLKER
Pre-Service Fat Intake
(pre-1942)
116.9g animal fat / day
126g animal fat / day
On-Service Fat Intake
(1943 - 1945)
131.8g fat / day
133g animal fat / day
Post-Service Fat Intake
(1945 -
179.3g fat / day
178g animal fat / day
Increase in Animal Fat Consumption 62.4g / 53.3%
51.9g / 41%
Both reports say it is possible to conclude that Mr Sharpe’s animal fat intake increased by at least 40% and to at least 50g/day, consistent with the requirements of the SoP.
TRIBUNAL’S DELIBERATIONS
The parties agree that the threshold question arising in this matter is the cause of Mr Sharpe’s death. If prostate cancer is found to be a cause of death, the question that follows is whether it is related to Mr Sharpe’s service.
Cause / Kind of Death
The Act requires that for pension claims relating to the death of a veteran, the Tribunal must first determine the kind of death suffered by the veteran on the balance of probabilities.[55] The Full Court of the Federal Court has held in Collins[56] at 289 that the kind of death for the purpose of section 120A(2) and (4) of the Act ‘refers to the medical cause or causes of death.’ As held in Hancock[57], there can be more than one kind of death. When the veteran’s cause of death is identified, the decision-maker must then determine whether an SoP applies and whether the veteran’s death was war-caused in accordance with the principles set out in Deledio. As held in Collins, a determination about the medical cause or causes of death ‘is anterior to, and distinct from, the second question, namely the relationship of the…death to the service of the veteran.’[58] I note also that in Collins, the Full Court held at 296-297:
… we do not consider that as a matter of law any medical condition which may affect the time of death of a veteran by a measurable period, but does not otherwise play any real role in the pathological changes leading to the death (which are medically ascribed to another medical condition), is a death (that is a medical cause of death) or a kind of death under the VE Act (emphasis added)
[55] Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363 at 373.
[56] Collinsv Repatriation Commission [2009] FCAFC 90; (2009) 177 FCR 280.
[57] Repatriation Commission and Hancock [2003] FCA 711; (2003) 37 AAR 383 at 386.
[58] Collinsv Repatriation Commission [2009] FCAFC 90; (2009) 177 FCR 280 at 288.
Justice Tamberlin in Repatriation Commission v Towns,[59] held at 87 that:
‘…the expression “kind of death” is wide reaching. It does not, in terms, require identification of the prime cause of death in a medical sense, but is sufficiently broad to include death which occurs in a particular temporal or circumstantial context, such as death occurring “suddenly” or in a particular location or set of circumstances. The expression “kind” does not mandate a determination of the precise medical causation of the death. A death, for example, might be characterised as a death at sea, or a death in circumstances in which there has been an exposure to the elements. This could properly be described as a kind of death using that expression in a broad sense.’
[59] Repatriation Commission v Towns [2003] FCA 1262; (2003) 38 AAR 77.
Mr Yuile submits that although the diagnosis and worsening of Mr Sharpe’s dementia was well-documented, prostate cancer was an additional cause of death. He notes Professor Cade’s acceptance of the possibility at least that prostate cancer may have been a contributing factor to Mr Sharpe’s Nocturia and the exhaustion he suffered from frequent waking. Mr Yuile submits that exhaustion resulted in Mr Sharpe progressively withdrawing from the active pursuits he enjoyed, causing increasing isolation. He contends that Mr Sharpe’s refusal of oral intake was multifactorial and it was not possible to pull apart the various causes. He stated ‘it might be accepted dementia was the most immediate cause, but it was not the only one.’ Mr Yuile drew my attention to the three inter-related questions to be answered in claims under the Act as held in Hill and Repatriation Commission[60] at 436:
1. the nature of the injury, disease or death of the veteran;
2. the relationship of that injury, disease or death to the service of the veteran; and
3. the extent of the entitlement to benefits under the VE Act in respect of that war-caused injury, disease or death.
[60] [2009] FCAFC 91; (2009) 177 FCR 434.
Mr Rudge drew my attention to what he submitted were the three leading cases relevant to this matter, being Hill, Collins and Hancock. He agreed that the threshold question for determination was cause of death, and whether there was an SoP for that kind of death, which enabled the required connexion to be made with Mr Sharpe’s service. He submitted that significant weight should be placed on the evidence of Professor Cade, who said it was wrong to consider prostate cancer as an antecedent cause of death, and that ‘the terminal event of dehydration caused by Alzheimer’s Dementia’ was the cause of Mr Sharpe’s death. Mr Rudge traversed the clinical notes, noting scant references to Mr Sharpe’s prostate cancer until 2012. In light of Professor Cade’s evidence, Mr Rudge contended that prostate cancer was not active at the time of Mr Sharpe’s death and was not a cause of death. In contrast the comprehensively-documented clinical history demonstrates that Mr Sharpe’s deteriorating cognitive and physical function, and refusal of food and fluids, resulted from his Alzheimer’s Dementia.
Mr Rudge highlighted the Federal Court’s decision in Codd,[61] where Gordon J held at 622 that:
‘As the language of s 120(3) makes clear, and as the High Court emphasised in Repatriation Commission v Owens (1996) 70 ALJR 904 at 904, the question whether a reasonable hypothesis is raised is to be determined on a consideration of the whole of the material before the decision-maker: see also Repatriation Commission v Bey (1997) 79 FCR 364 at 367. A reasonable hypothesis within s 120(3) of the VE Act is a hypothesis that is pointed to by the material before the decision-maker, and not merely left open (or not excluded) by that material. A hypothesis that is not pointed to, but is a matter of assertion or is merely left open by the material, is not a reasonable hypothesis: see East v Repatriation Commission (1987) 16 FCR 517 at 532-3; 74 ALR 518 at 533-5; 12 ALD 389 at 402-4. See also Bey at FCR 366-7, 372-3; ALR 723-5, 729-31; ALD 484-5, 489-491; Bull v Repatriation Commission (2001) 188 ALR 756; 66 ALD 271; [2001] FCA 1832 at [18] and [41].’
[61] Repatriation Commission v Codd [2007] FCA 877; (2007) 95 ALD 619.
Consideration
Although Mr Sharpe’s Death Certificate lists dementia, prostate cancer and dehydration as causes of death,[62] as held in Hill, death certificates are not of themselves determinative of the cause or causes of a veterans’ death. They are certainly part of the evidence, encompassing expert medical evidence, on which the medical cause or causes of the veteran’s death can be determined. Moreover, in Codd, Gordon J observed at 625-626:
The phrase “kind of death met by the person” in s 120A(4) asks a causative question. It is not a question about whether the death was slow, fast or the like. It asks ‘questions of medical causation’ about the cause of death and does so in a particular context…
…
What then is the purpose for which the question in s 120A(4) about the kind of death met by the person is being asked? As a matter of statutory construction the answer is that the purpose is to ascertain whether or not there is a SoP which addresses the question of the reasonableness of the hypothesis about the connection between the cause of death of the veteran and the circumstances of the service.
The “kind of death met by the [veteran]” that is to be identified requires examination of the causal connection between the death and the circumstances of the service. In particular, it requires examination of the relevant hypothesis that is said to provide the causal link between death and service...
[62] Exhibit R1, p.9
I am satisfied on the balance of probabilities that Mr Sharpe’s cause and kind of death resulted solely from dementia, a complication of which was increasingly severe dehydration. Professor Cade noted dementia commonly results in sufferers progressively refusing oral intake. I note in this regard the many references in Mr Sharpe’s clinical notes to his refusal of food and water, including on 23 January 2013 where a dietician was asked to investigate his reduced appetite.[63] This worsened from 29 January 2013,[64] to the point where he refused all oral intake after arriving at the Jemalong Residential Village on 6 February 2013.[65]
[63] Exhibit R4, p.17.
[64] Ibid, pp.21-28.
[65] Exhibit R5, pp.5-10.
I note the Commission has previously considered whether there was a connexion between Mr Sharpe’s death from dementia and service (both Vascular and Alzheimer types of dementia), but found that neither could be related to service. [66] In any event the Commission’s finding in this regard is not a reviewable decision before the Tribunal.
[66] Exhibit R1, p.81. The Commission found that none of the factors contained in the Statements of Principles relating to Vascular Dementia or Alzheimer-type Dementia were able to be related to Mr Sharpe’s service.
In light of the compelling evidence of Professor Cade, I am satisfied on the balance of probabilities, that although Mr Sharpe had prostate cancer when he died, it was quiescent in the years prior to and at the time of his death. The periodic reviews under Dr Nicholson’s supervision never revealed any metastases or further obstruction arising from prostate cancer. No surgery or radiation therapy was ever given. The evidence does not support a finding it was an operative cause or contributing factor to his death.
Mr Sharpe lived with Prostate Cancer for approximately 14 years, but the evidence reveals it was well-controlled and on only one occasion, approximately a year before his death, did his PSA reading approach a level that Dr Nicholson considered may warrant active resumption of treatment. As Professor Cade noted, the elevated PSA on that occasion may have resulted from prostate cancer or, more likely in his view, another cause like a urinary tract infection. Mr Sharpe’s PSA subsequently declined to normal levels, which Professor Cade said could have resulted from the briefly-resumed hormone treatment or the unrelated resolution of an infection. Moreover, Professor Cade considered that the history of normal PSA readings meant the Nocturia Mr Sharpe experienced, did not arise from progressive prostate cancer, but is a common problem in older males – with or without a prostate tumour.
In contrast to the sparse expert evidence relating to prostate cancer, the evidence relating to dementia, particularly after Dr Thoo’s diagnosis in June 2012, clearly points to the consequences of Mr Sharpe’s dementia as an overwhelming cause of his cognitive and physical decline and death. This would undoubtedly have been distressing for the loving members of his family who did what they could to assist him.
Having determined that Mr Sharpe’s cause / kind of death resulted from dementia, which is unrelated to the hypothesis advanced in this application, it is not necessary to consider if dementia was a war-caused condition under the Deledio process. Given I am not satisfied prostate cancer was a cause or kind of death, the follow-on question of whether it was war-caused also does not arise. I do so for completeness.
Stage 1: Hypothesis Connecting Mr Sharpe’s Service With Prostate Cancer?
The plain meaning of ‘hypothesis’ was considered in East v Repatriation Commission[67] at 532:
‘A hypothesis may be conveniently defined as: ‘proposition made as basis for reasoning, without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption’: The Concise Oxford Dictionary.’
[67] [1987] FCA 242; (1987) 16 FCR 517.
As held in Bull, it is impermissible at this stage of the process to enter into fact-finding. In Meehan v Repatriation Commission[68], Wilcox J, held at 377 that:
‘… the practical question arising in step one of the Deledio formulation will be whether the material before the Tribunal points to a hypothesis connecting the particular agreed disease or injury with the person’s war-service. If so, the Tribunal will take the next step of ascertaining whether there is a relevant SoP.’
[68] [2001] FCA 597; (2001) 64 ALD 366.
The hypothesis relied upon by Mrs Sharpe is that her husband’s war service caused him to develop a preference for animal fat and to thereafter consume food high in animal fat. She contends that the evidence supports a connexion between the increased intake of animal fat, Mr Sharpe’s development of Prostate Cancer, and his subsequent death in 2013. Mr Yuile submits that the evidence of Dr Volker is sufficient to raise a hypothesis connecting Mr Sharpe’s prostate cancer to war service. I agree and accept that Dr Volker’s evidence points to a hypothesis as a starting point for further investigation.
Stage 2: Statement of Principles in Force?
As previously discussed, there is in existence an SoP relating to Malignant Neoplasm of the Prostate. The Applicant states that Mr Sharpe never drank alcohol or smoked, and she relies solely on Clause 5(c) of SoP 28 and Clause 6(c) of SoP 53, which require that
‘The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the prostate or death from malignant neoplasm of the prostate with the circumstances of the person’s relevant service is:
‘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; or
…’
‘Animal fat’ is defined at paragraph 9 of the SoP to mean fat contained in or derived from:
‘(a) dairy products;
(b) eggs; or
(c) meat, other flesh or offal from animals (including birds but excluding seafood).’
Accordingly, there is an SoP in force concerning Malignant Neoplasm of the Prostate. The key question that arises, however, is the reasonableness of the hypothesis relied upon by Mrs Sharpe.
Stage 3: Reasonableness of Hypothesis?
The third step of the Deledio process is consideration of whether the hypothesis raised is reasonable for the purposes of section 120(3) of the Act. It is not necessary at this stage to determine the factual correctness of the hypothesis, just whether there is material pointing to Mr Sharpe’s Prostate Cancer being connected to his operational service, which therefore requires determination under section 120(1) of the Act.
In Repatriation Commission v Bey[69], the Court held at 372:
‘While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must, as East states, be pointed to or supported, and not merely left open as a possibility, by the material before the decision-maker.’
[69] Repatriation Commission v Bey [1997] FCA 1347; (1997) 79 FCR 364.
In Bushell v Repatriation Commission[70], Mason CJ, Deane and McHugh JJ held at 414, citing East, that a hypothesis is not reasonable if it is:
‘…obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous.’
It was further stated at 414:
‘The material will raise a reasonable hypothesis within the meaning of s.120(3) if the material points to some fact or facts (“the raised facts”) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true.’
[70] Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408.
The High Court held in Byrnes v Repatriation Commission[71] at 571:
[71] Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564.
‘The position may be summarised as follows:
(1)First, sub-s.(3) of s 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran’s injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable the claim fails. Proof of facts is not in issue at this point.
(2)If a reasonable hypothesis is established sub-s.(1) of s.120 is applied. The claim will succeed unless:
(a)one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b)the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.’
Mr Sharpe’s wife, who knew him best, did not meet him until approximately two years after his return from the War. They were married approximately a year later in 1949. Mrs Sharpe’s references to her husband’s diet prior to the War and in the years before they met, is, on her own evidence, speculative at best. The material does not point to Mr Sharpe’s pre-War diet as being low in animal fat, or that his diet during war service was comparatively higher in fat, or that he solely developed a preference for animal fats because of that comparatively higher intake during operational service. The material before me does not point to discernible changes in this regard, and any causal connexion is overly reliant on assumption, speculation and inference.
Even if Mr Sharpe’s cause of death could be attributed in part to prostate cancer, the proposed hypothesis linking it with the circumstances of his service is too remote and tenuous. While I am mindful of the provisions within section 138 of the Act, and have considered the estimates derived from dietary / nutritional experts, the material points to nothing more than a possibility of what Mr Sharpe’s animal fat consumption may have been before he met Mrs Sharpe two years after the War. It cannot be said on the evidence that his prostate cancer would not have occurred but for the rendering of his service in New Guinea and the proposed hypothesis cannot be considered reasonable.
Stage 4: Whether the factual evidence satisfies the standard of proof?
As no reasonable hypothesis is raised, it would not have been necessary to consider the fourth Deledio stage.
CONCLUSION
Mr Sharpe’s dementia was diagnosed as moderate-to-severe in mid-2012. His clinical notes document a substantial cognitive and physical decline in the 18 months prior to diagnosis, which would have been most distressing for his loving family – particularly his wife, who bore the heaviest burden of care. There were unfortunate symptoms and complications of his dementia, one of which was refusal of oral intake, which caused dehydration and inevitable death.
In contrast, Mr Sharpe lived with prostate cancer for approximately 14 years. It was well-controlled and although present at the time of his death, was quiescent and not a cause of death. In that respect he died with prostate cancer, not as a result of prostate cancer. Based on the specific circumstances of Mr Sharpe’s case and the evidence of Professor Cade in particular, I am also satisfied that Mr Sharpe’s Nocturia did not arise from his prostate cancer.
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.
I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Nikolic AM CSC
...........................[sgd].............................................
Associate
Dated: 14 February 2018
Date of hearing: 22 January 2018 Counsel for the Applicant: Mr Andrew Yuile Solicitors for the Applicant: De Marchi & Associates Advocate for the Respondent: Mr Ken Rudge
Department of Veterans’ Affairs
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