Smart and Repatriation Commission
[2003] AATA 453
•20 May 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 453
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T1998/150
VETERANS' APPEALS DIVISION
)
Re ERICA MARGARET SMART Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr S P Estcourt QC., (Deputy President) Date20 May 2003
PlaceHobart
Decision The decision under review is affirmed.
[Sgd S P Estcourt ]
Deputy President
CATCHWORDS
Veterans' affairs - pension - whether applicant's husband died of prostate cancer which was war-caused - whether animal fat intake during and after service met factor required by Statements of Principle.
Veterans' Entitlements Act 1986 (C'th) - ss120(1) and (3), 120A, 196B
Statement of Principle No 84 of 1999.
Repatriation Commission v Deledio (1998) 83 FCR 82
REASONS FOR DECISION
20 May 2003 Mr S P Estcourt QC., (Deputy President) 1. This is an application for review of a decision of the Repatriation Commission under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), dated 21 November 1997 which decision was affirmed by a decision of the Veterans’ Review Board dated 11 March 1998. The result was to refuse a widow’s pension to the applicant on the ground that the death of her late husband, Frederick Henry Smart, on 26 September 1997, was not war caused.
2. The late Mr Smart had operational service within the meaning of s61A of the Act by virtue of his service in the Royal Australian Navy from 30 August 1943 to 7 August 1946 during which time he served outside Australia.
3. The veteran’s death on 26 September 1997 was as a result of malignant neoplasm of the prostate (“prostate cancer”).
4. As the late Mr Smart had operational service, his widow’s application is to be determined under s120(1) and (3) of the Act on the basis of whether the material before the Tribunal raises a reasonable hypothesis connecting the cause of Mr Smart’s death with his war service.
5. Because the applicant’s claim was lodged after 1 June 1994, when s120A of the Act was introduced, for a hypothesis to be reasonable it must be supported by a relevant Statement of Principle. The relevant Statement of Principle in relation to malignant neoplasm of the prostate is Statement of Principle No.84 of 1999.
6. How the Tribunal must apply s120A of the Act in the light of s120 was described by the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82 as follows:
“At the risk of being repetitious we would restate the course which the Tribunal is to take in a case, such as the present, (i.e. 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. This application originally came on for hearing before Deputy President Blow OAM QC on 16 July 1997. The transcript of the evidence on that occasion was tendered by consent on the hearing before me on 7 August 2001.
8. The applicant and her late husband were married in 1977. Mrs Smart felt that her husband’s diet was too fatty, but she just cooked for him the type of food he liked. The only thing Mrs Smart knew about her husband’s wartime diet, (he didn’t speak a lot about it), was that he would talk about bully beef and biscuits.
9. Mrs Smart also provided detailed information on her husband’s diet to Ms Linda Kilworth, a consultant dietician-nutritionist, and the resulting revised daily eating pattern information was assessed by Ms Kilworth in a report tendered in evidence before the Tribunal dated 30 July 2002, upon which she was cross-examined.
10. Ms Kilworth’s report is set out below, although without the schedule attached to the copy tendered in evidence, which contained the “revised daily eating pattern as per telephone interview” with Mrs Smart:
“DIETICIAN-NUTRITIONIST REPORT ON THE VETERAN
SMART, Frederick Henry
DOB: 20/12/28
Aat ref:
Introduction
This report outlines data concerning the history of animal fat consumption by Frederick Henry Smart.
Method of assessment
Mrs Erica Margaret Smart was issued a self administered Dietary Survey which was constructed by Dr Ruth English in consultation with myself. The questionnaire was validated and it was assessed that the questionnaire was valid. The Applicant/Respondent to questionnaire provided details of the post war diet only, as she did not cook for her late husband until her marriage in 1977.
The questionnaire responses were analysed using the Xyris Software “Foodworks” dietary analysis program. The Food Frequency Questionnaires (FFQ) were analysed using the Australian Food Composition Tables databate “Nuttab”.
Relevant Data
Ht: 6 feet, 2 inches (188cm)
Wt on discharge in 1946 = 11 stone 4 lb (71.6 Kg)
Wt on entry to the Navy on 30 August 1943 = 12 stone 1 lb (76.6. Kg)
These measurement indicate that the member was not overweight prior to or during his war service.
Weight in Oct 1990 = 94.5 Kg (BMI = 26.7) He was OVERWEIGHT.
Prior to War
No record of food intake has been obtained, but one could surmise that he ate when he could, and was no different to the average population during the post depression years. The average intake of animal fat is 116.9g/d. This figure is derived from Dr English’s review of literature.
During the War
Enlistment date 30 August 1943 into the RAN.
The late Mr Smart served on the HMAS Air Hope in New Guinea Waters from 13th February 1945 to 1 June 1946.
Ration scale used at the time would have been The Pacific Islands and New Guinea (Amended on 1/2/44), which has an average animal fat content of 131.8 grams per day. This is based on the study by Lewis (1998)1 who calculated the animal fats from the archived list of food contents for each of the ration scales in each theatre of war. Thus, the assumption here, is that the food on the HMAS Air Hope is the same ration scale for those serving in the Pacific Islands and New Guinea. It must be pointed out that the Navy has a ration system, which allows the ships to purchase food from various port facilities. However, there is no historical records indicating what food items were purchased, during this period.
According to Walker2 there were several surveys carried out with land based soldiers and it was found that chocolate was popular, as were butter and cheese. Herring, salmon and bully beef were eaten regularly. Milk was in plentiful supply. These items increased the fat content of the diet.
The animal fat content of the civilian diet, was 122 g (minus 10% for wastage).
The animal fat content during service was significantly high, and could lead to MR Smart continuing to eat these foods on his return from service.
1 Lewis, Janine (1998) “Nutrient Analysis of Ration Scales – World War 2, Summary Table 1
2 WALKER, A.S. (1957) The Island Campaigns Canberra War Memorial
Post War
Mr Smart Discharged on 7th August 1946, having served three years. The date of clinical onset of the neoplasm is unclear, but a departmental medical officer noted that in 1991, Mr Smart had a bilateral orchidectomy which indicated that carcinoma of the prostrate was then present. Mr Smart died on 25th September 1997.
On discharge, Mr Smart worked as a storeman in the equipment section of Tasmanian Education Department.
According to Mrs Smart, he was a very active man. He lived with his mother, and she cooked with lots of fat. Mrs Smart continued to cook like this, until his heart problems.
Calculated fat intake from FFQ is as follows:
220.20g (para 4 of instrument Nos 190 and 191 of 1996)
236.3g (SOP 84/85 of 1999)
These figures have been obtained by re‑issuing the dietary questionnaire through interview over the phone with Ms Kilworth. See appendix for the revised daily eating pattern and calculations from the revised Food Frequency Questionnaire.
The main difference is in terms of butter and other dietary products used. The original questionnaire was “confusing” and Mrs Smart did not understand that the food frequency refers to daily or weekly consumption. Mr Smart was fond of diary products. This information is consistent with the etiology of heart disease.
These figures are derived by using the approved food frequency questionnaire as derived by Dr English and agreed to by Ms Kilworth, and calculating total fat content from the NUTTAB data.
Requirements of SOP
Instrument
Pre war fat content as calculated
Post war fat content as calculated
Total increase
Percentage Increase
190/191 1996
122 g
220.2 g
98.2 g
80%
84/85 1999
123.5
236.3 g
112.8g
82.5%
The figure indicates that the animal fat consumption increased by more than 40% for both Sop.
Under these conditions the SOP is satisfied by both instruments.
LINDA KILWORTH
B.Sc., Grad. Dip. Nutr & Diet., B.A., M.D. A.A
CONSULTANT DIETICIAN-NUTRITIONIST
30th August 2002”
11. The Tribunal also had evidence from Dr Ruth English AO, nutritional consultant, in particular by way of a report dated 5 August 2002 which was tendered at the resumed hearing of this application before me on 7 August 2002, and upon which Dr English was cross-examined. The report specifically dealt with the analysis by Ms Kilworth of the revised dietary questionnaire dealt with in her report of 30 July 2002.
12. Mr Webster in his closing submissions dated 13 January 2003 submitted that:
“The only area of disagreement is between Ms Kilworth and Dr English and then only in relation to a method of validation not heard of by Ms Kilworth and never put to her.”
Mr Webster was referring to a method of validation of the revised dietary questionnaire return against criteria included in the “validation directions” issued by this Tribunal for the “Prostate Cancer Group Application (Queensland)”.
I do not need to stay to consider the status of those validation criteria or the question of fairness raised by mr Webster, because for the reason to which I will turn in a moment, I do not accept that the factor required by the relevant Statement of Principle that there has been an increase in animal fat consumption by at least 40% to 70gm/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate (which in this case was most likely in about 1991) has been shown.
13. Having considered all the material before me, I am satisfied that material points to a hypothesis connecting the death with the circumstances of the late Mr Smart’s operational service.
14. There is a relevant Statement of Principle in force determined by the Repatriation Medical Authority under s196B of the Act, namely Statement of Principle No.84 of 1999.
15. The hypothesis is not however a reasonable one in the sense of being consistent with the template found in the relevant Statement of Principle. One of the factors which must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting death from malignant neoplasm of the prostate with the circumstances of the person’s relevant service is:
“(c) increasing animal fat consumption by at least 40% and to at least 70gm/day for at least 20 years before the clinical onset of malignant neoplasm of the prostate.”
I am not prepared to make such a finding given Dr English’s scientifically based calculation that if the revised diet considered by Ms Kilworth was the late Mr Smart’s usual diet for 20 years, he would have experienced a weight gain of 1,820kg over that period and that even allowing for a high level of energy intake, the differential between energy intake and energy requirement would still have resulted in an impossible weight gain of 1,248kg over the 20 year period of his usual diet.
16. I find that Mr Smart’s diet could not have increased to the extent argued by Ms Kilworth for the simple and undeniable scientific reason given by Dr English. As she pointed out her weight calculations were based on the fundamental principle of thermodynamics that energy can only be transformed from one form to another and so energy intake beyond the body’s needs is stored as fat.
17. Mr Smart’s weight recorded in October 1990 was 94.5kg and although that might be classified as “overweight” it does not approach the impossible figure demonstrated by Dr English.
18. I am satisfied therefore that the factual basis of the hypotheses advanced on behalf of the applicant is dispelled beyond reasonable doubt.
19. The Tribunal is satisfied beyond reasonable doubt that Mr Smart’s death was not war-caused. Accordingly, the applicant’s claim must fail.
20. It follows that the decision of the Tribunal is that the decision under review is affirmed.
I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Mr S P Estcourt QC., (Deputy President)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 7 and 8 August 2001, 7 August 2002
Date of Decision 20 May 2003
Counsel for the Applicant Mr R M Webster
Counsel for the Respondent Mr M Castle
Solicitor for the Respondent Department of Veterans' Affairs
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