Skelton and Repatriation Commission
[2000] AATA 742
•25 August 2000
DECISION AND REASONS FOR DECISION [2000] AATA 742
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/906
VETERANS' APPEALS DIVISION )
Re JOAN MAY SKELTON
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date25 August 2000
PlaceSydney
Decision The decision under review is affirmed.
(Sgd) M D ALLEN
..............................................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Cancer of the prostate. Whether Tribunal could be reasonably satisfied as to increase in consumption of animal fat post service.
Veterans' Entitlements Act 1986 - subs120(4), subs120B(3)
Re Keenan and Repatriation Commission [2000] AATA 707
Repatriation Commission v Smith (M J) 15 FCR 327
Re Robertson and Repatriation Commission 50 ALD 668
McDonald v Director-General of Social Security 1 FCR 354
REASONS FOR DECISION
25 August 2000 Senior Member M D Allen
By application made 9 June 1999 the Applicant sought review of a determination by a Veterans' Review Board, that affirmed a prior decision of the Respondent, that the death of her late husband was not causally related to his war service.
The late Veteran, Keith Skelton, served in the Australian Army between 2 January 1942 and 20 June 1946. The Deceased was a member of the Australian Army but not the 2nd AIF and thus did not serve outside Australia. It is not disputed that the late Veteran died from cancer of the prostate on 7 February 1992.
As the Deceased did not serve outside Australia, the standard of proof in this matter is that stated in subs120(4) of the Veterans Entitlements Act 1986 (the VEA), namely that of to the Tribunal's "reasonable satisfaction". In Repatriation Commission v Smith (M J) 15 FCR 327 the Full Court of the Federal Court equated the term "reasonable satisfaction" to the civil standard of proof, that is to say proof on the balance of probabilities. As pointed out by subs120(6) of the VEA, no party to this application for review bears any onus of proof.
The Applicant's claim was lodged with the Respondent on 18 August 1997 therefore s120B of the VEA applies. Subs120B(3) states:
"In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service."
In this matter the connection with service of the death of the Deceased contended for by the Applicant is that during the Deceased's Army service his diet contained a high animal fat content, in contrast to his diet pre-war. After discharge, the Deceased continued to express a preference for a diet high in animal fats and so the Applicant continued to cook such a diet for him. These circumstances conformed to paragraph (1)(a) of Statement of Principles Instrument No 96 of 1995 as amended by Instrument No 192 of 196, namely that the Statement of Principles concerning malignant neoplasm of the prostate with the circumstances of service is:
"(a)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; …"
No issue was taken by the Respondent with the fact that the Deceased was discharged from the Army on 20 June 1946 and cancer of the prostate was first diagnosed in October 1985 (see Exhibit R2 at p20).
Following the decision of the Tribunal in ReRobertson and Repatriation Commission 50 ALD 668, it can be said that the "clinical onset" of the Deceased's malignancy was when the symptoms and/or physical signs of the disease were such as to cause the Deceased to consult a medical practitioner.
The Deceased was medically examined as to his fitness for military service on 24 April 1940. At that time his height was recorded as 5 feet 3½ inches and weight as 127lbs (approximately 58kgs). He was then called up for service on 2 January 1942. A medical examination on 30 April 1943 recorded his height as 5 feet 4 inches and weight as 140lbs (approximately 63.5kgs). At discharge his weight was recorded as 144lbs (approximately 65.5kgs).
The Deceased was born on 16 December 1919 and at his first Army medical was aged 20 years and 4 months. His chest measurement is given as:
"Girth when fully expanded 33½ inches.
Range of expansion 2½ inches."
At his second medical when aged 23 years and 4 months, he is recorded as having grown half an inch and chest measurement has increased to 36 inches fully expanded with a range of expansion of 4½ inches. What these figures suggest is that the Deceased had not stopped growing when taken into the Army and during service he grew half an inch and his upper torso expanded. It is entirely consistent with this growth that he also put on weight.
In her evidence to the Tribunal the Applicant stated that her husband "put on weight in the Army – but if anything during our marriage he lost weight".
The next recording of the Deceased's weight available to the Tribunal was on 1 October 1975. Weight is recorded as 72kgs. A report of 4 November 1975 records weight as 68kgs. At 4 April 1978 weight is recorded as 66kgs and at 10 May 1978 64kgs. As at 3 June 1981 the Deceased's weight was recorded as 70kgs.
Exhibit A3 is a report by a dietitian, Mr Keech. Mr Keech was not called by the Applicant and there are matters within his report which cause me to doubt some of its conclusions. At the start of his report Mr Keech states as to the Deceased's pre-war diet:
"… I have endeavoured to determine Mr Skelton's eating style in the years before he joined the army, particularly during his adolescent and young adult years from 1932 to 1942. As Mrs Skelton did not know her husband for most of this time, I asked if I might speak with her sister in law, Mrs Valda Quinn regarding her recollections of the eating style of her brother, Keith during this time. Mrs Skelton refused me permission to speak with Mrs Quinn stating that Mrs Quinn's poor health was the reason but volunteered to speak with Mrs Quinn herself on the subject. Unfortunately, the full extent of the information Mrs Skelton was able to provide from Mrs Quinn was an assurance that they 'just ate plain food'."
The passage quoted above must be contrasted with the statement on page 2 of Mr Keech's report where he states:
"Mrs Skelton tells me that her husband ate the following general food pattern before he joined the army" (Tribunal's emphasis)
During her evidence in chief the Applicant confirmed the evidence in her statement which became Exhibit A2. In that statement she says:
"3.Before the War I know that he lived with his family and they had a small garden and they were not particularly wealthy. They
4.After Keith's service in the Army we were married in 1947.
5.His dietary habits had changed a lot during those years. He told me that the Army food was mostly fatty, fried sausages, fried eggs, fried meat and other fatty foods.
6.He told me that that diet was more than 50% of his regular diet during his Army years.
7.When he finished his Army service and we were married, he expressed his preference for that type of food. I started to cook it for him on a regular basis.
8.In my opinion I continued to serve him similar types of foods as that which was given to him in his Army years 50% to 60% of the time. I gave him those foods every day when I cooked for him and this continued for the remainder of our married life until 1992."
In cross-examination the Applicant stated that before the war she and the Deceased lived opposite one another but did not go out together. Although the Deceased was part of the same social group playing tennis, "he went his way and I went mine until we started seeing one another" which was during the Deceased's war service.
Asking the aged widow of a deceased veteran to recollect back over 60 years is to place a totally unfair burden upon her but from the passages outlined above, I can only make the finding that the Applicant does not know in any detail, and certainly not in the detail listed by Mr Keech at page 2 of his report, what the Deceased's diet was pre-war.
What I am prepared to find, having regard to the Applicant's evidence and the area where the Deceased lived and his occupation, is that the Deceased's family pre-war grew their own vegetables and that they were not wealthy people. From this I draw the inference that vegetables would have formed a large part of any meal and that meat would have consisted of the cheap cuts or bulk items such as mince or sausages. Indeed, although I have no proof, I suspect the diet set out by Mr Keech at page 2 of Exhibit A2 is very close to the truth. Mr Keech's report as to the Deceased's alcohol intake also differs to the Applicant's account to the Tribunal. Mr Keech at page 3 stated that the Deceased consumed "one or two schooners per day" whereas the Applicant stated that the Deceased drank on Friday afternoons after work, but did not stay at the hotel long. The Deceased did not drink at home. These discrepancies leave me with doubts as to the factual basis of Mr Keech's report.
The link between the ingestion of animal fat, prostate cancer and war service has been discussed by the Tribunal in Re Keenan and Repatriation Commission [2000] AATA 707 (O'Connor J, Mr I R Way and Dr P D Lynch, Members).
At paragraphs 58 and 59 of its decision, the Tribunal said:
"58. The Tribunal considers that included in the many processes operative in the determination of dietary preference and ingestion there are factors special to war service. These are physical, psychological and emotional factors. It would be impossible to mention them all as they differ between the three services and they are different for each individual. Some of these factors include separation from normal life for periods of years; periods of panic and fear interspersed with boredom; a lack of privacy; basic camping facilities; dull and repetitive basic cooking and abstinence from and longing for favourite foods. The expert witnesses appear not to have considered these parameters, which impact on veterans in their post-war behaviour. Thus a narrow focus on the dubiously accurate levels of fat in the diet as the only factor in causing a link to an excessive fat ingestion after the war is considered inappropriate. It is particularly so in relation to this beneficial legislation, which requires reasonable certainty that a link does not exist before the claim can be rejected.
59. This general consideration of the expert evidence before the Tribunal convinced the Tribunal that because of the inherent inaccurate basis of the post-war fat consumption survey and the pre-war and wartime diet surveys all comparisons derived from these figures cannot aspire to any degree of mathematical precision. However, as indicated earlier, it is on this evidence the Tribunal must make its decision. Further, the current knowledge is limited as the processes surrounding fat preference and ingestion are both multifactorial and complex, which in turn limits the guidance available to the Tribunal as to which of the factors are the most significant amongst these many processes."
The only difference in this matter is that the standard of proof is that of to the Tribunal's "reasonable satisfaction".
For reasons outlined above I cannot accept the accuracy of Mr Keech's estimates regarding the Deceased's pre-war diet.
What is certain is the Applicant's evidence in Exhibit A2, and confirmed by her in sworn evidence, that the Deceased told her that Army food was mostly fatty, being fried sausages, eggs, meat and other fatty foods and that after his marriage to the Applicant the Deceased expressed to her his preference for that type of food and so she began to cook it for him on a regular basis.
The calculation carried out by Mr Keech in Exhibit A3 demonstrates that post-war the Deceased's daily intake of animal fats exceeded 70gms and thus there is conformity with part of paragraph 1(a) of the Statement of Principles.
On the uncontradicted evidence of the Applicant I am satisfied that the Deceased, as a result of the types of food ingested by him whilst in the Australian Army during the period 1942 to 1946, developed a preference for fatty foods and thus increased his animal fat consumption to at least 70gms per day and indeed beyond that. However, on the material before me I find that I cannot be reasonably satisfied that the Deceased increased his animal fat consumption by at least 40%. I suspect that he did but suspicion and conjecture cannot be put in the place of evidence.
Likewise I find that there is no material which would satisfy me that the Deceased did not increase his consumption of animal fat by 40%. As subs120(6) of the VEA points out no party to this review bears any onus of proof and where there is no sufficient evidence as to a fact then I cannot be reasonably satisfied (ie satisfied on the balance of probabilities) as to its existence and the status quo must remain – see Mc Donald v Director-General of Social Services 1 FCR 354.
As I cannot be satisfied on the balance of probabilities that the Statement of Principles in force upholds the contention that the death of the Deceased is connected with his war service, as I cannot be satisfied as to the increase in animal fat consumption by at least 40%, I am deemed, pursuant to subs120B(3) not to be reasonably satisfied that the death of the Deceased is connected with his war service and thus the decision under review is therefore affirmed.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Signed: Kwai-Ling Wong .....................................................................................
AssociateDate of Hearing 20 July 2000
Date of Decision 25 August 2000
Counsel for the Applicant Mr C A Vindin
Solicitor for the Applicant Mr C Hart, Bale Boshev & Associates
Solicitor for the Respondent Mr P Godwin, Department of Veterans' Affairs
0