Smith and Repatriation Commission
[2005] AATA 1245
•16 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1245
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1997/887
VETERANS' APPEALS DIVISION ) Re LILLY SMITH Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President Don Muller Date16 December 2005
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution determines that the death of Archie John Smith was war-caused within the meaning of that term in the Veterans’ Entitlements Act 1986. ................SIGNED..............................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
VETERANS’ AFFAIRS – death from prostate cancer as a result of a diet high in animal fat – SoP satisfied – decision set aside
Veterans’ Entitlements Act 1986: ss.5C, 7, 8, 13, 120, 120A, 196B(14)
REASONS FOR DECISION
Deputy President Don Muller 1. Lilly Smith, the Applicant, has claimed a widows’ pension pursuant to section 13(1)(a) of the Veterans’ Entitlements Act 1986 (the VEA).
2. Mrs. Smith claims that her late husband, Archie John Smith, died from the effects of a war-caused disease, namely prostate cancer.
3. The elements of Mrs. Smith’s claim are:
(a)Archie John Smith died from the effects of prostate cancer.
(b)For many years prior to his death from prostate cancer, Mr. Smith was in the habit of consuming food which had a high animal fat content.
(c)A diet with a high animal fat content is an accepted cause of prostate cancer.
(d)Mr. Smith’s habit of eating a diet with a high animal fat content arose out of the diet to which he had become accustomed while he served in the Royal Australian Air Force (the RAAF).
(e)The food that he had become accustomed to eating during his years in the RAAF was higher in animal fat content than his pre-service diet.
(f)Thus, Mr. Smith’s death from prostate cancer was related to his RAAF service.
4. Mrs. Smith’s claim has been rejected by the Respondent on the grounds that her late husband’s death was not causally related to his eligible service.
5. The Veterans’ Review Board (VRB) affirmed the Respondent’s decision.
6. Mrs. Smith seeks review of that decision.
Legislative Framework
7. Pursuant to section 13(1)(a) of the VEA, where the death of a veteran was war-caused, the Commonwealth is, subject to the VEA, liable to pay pensions by way of compensation to the dependants of the veteran in accordance with the VEA.
8. Section 8(1)(b) of the VEA provides that the death of a veteran shall be taken to be war-caused, if the disease contracted by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran.
9. Section 7(1)(a) of the VEA provides that a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service.
10. The question of whether a death is war-caused within the meaning of section 8 of the VEA is to be decided by applying the standard of proof prescribed by section 120 of the VEA.
11. Section 120(1) provides that 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 was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
12. Section 120(3) provides that the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the death was war-caused 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.
13. Section 120A(3) provides that for the purposes of section 120(3), a hypothesis connecting a disease contracted by a person or 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 Statement of Principles (SoP) that upholds the hypothesis.
14. Subsection 196B(14) of the VEA provides that a factor causing or contributing to a death is related to service rendered by a person if it arose out of, or was attributable to, that service.
Necessary Elements of Hypothesis
15. In the context of this review the elements of a hypothesis connecting prostate cancer contracted by the veteran with the circumstances of his war-service (operational service) are as follows:
(a)the veteran’s pre-war service diet contained animal fat of X grams per day on average;
(b)the veteran’s war service diet, provided to him by the RAAF, contained animal fat of (X + Y) grams per day on average;
(c)the increase in consumption of animal fat of Y grams per day whilst on eligible service was such that it could cause the veteran to increase his consumption of animal fat in his post-war service diet to a level, for a significant number of years, which could cause prostate cancer.
16. If the material placed before the Tribunal does raise a hypothesis containing the above elements, that hypothesis will only be reasonable if the hypothesis is consistent with, or fits the template of the relevant SoP established by the Repatriation Medical Authority.
17. In this case the relevant SoP at the date of this decision is Instrument No. 28 of 2005, “Malignant Neoplasm of the Prostate”. Those parts of No. 28 of 2005 relevant to this review are:
“Factors that must be related to service
4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to the relevant service rendered by the person.
Factors
5.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 a person’s relevant service is:
….
(c)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.
Other definitions
8. For the purposes of this Statement of Principles:
“animal fat” means fat contained in or derived from:
(a)meat, other flesh or offal from animals (including birds but excluding seafood);
(b) dairy products; or
(c) eggs from birds.”
Material Placed Before the Tribunal
18. The following matters are not in dispute and the Tribunal finds:
(a)Archie John Smith was born on 5 March 1919.
(b)He enlisted in the RAAF on 7 December 1941.
(c)He achieved the ranks of Airman, Pilot Officer, Flying Officer and Temporary Flight Lieutenant.
(d)His postings were:
7.12.41 to Bradfield Park
30.4.42 to Temora
25.6.42 to Bradfield Park
6.8.42 to Canada (Calgary and Trenton)
5.9.44 to United Kingdom
30.11.45 to Melbourne
14.2.46 to Bradfield Park
(e)He was discharged on 4 March 1946.
(f)During World War II he served in Australia, Canada, England, France and Belgium.
(g)He rendered operational service during World War II, within the meaning of those terms in the Act.
(h)He married Margaret Maud Murray in 1941. They divorced in about 1970.
(i)He married the Applicant, Lilly Smith, on 20 January 1976.
(j)He was one of the founders of East West Airlines which commenced operations from the RAAF Base in Tamworth.
(k)In the late 1950s he retired from flying to continue a long career in airline management. He retired as General Manager of East West Airlines in 1979.
(l)He was first treated for prostate cancer in August 1993.
(m)He died on 11 August 1996. The cause of death was prostate carcinoma – three years.
(n)He was a “veteran” within the meaning of that term in section 5C(1) of the VEA.
19. The evidence relating to Mr. Smith’s diet was provided by:
(a)His sister, Annie Joan Smith, who was able to give evidence about Mr. Smith’s pre-war diet and immediate post war diet.
(b)His son, Brian J Smith, who was able to give evidence about his father’s post war diet.
(c)His widow, the Applicant, who gave evidence about his diet from 1972 onwards. Prior to getting married they lived together for a period of four years.
(d)His daughter, Jennifer Fletcher, daughter of first marriage, born in March 1947, who lived at home with her parents until she was 21 and then continued a close relationship with her father once she moved out of home.
(e)Mrs. Smith completed a “dietary survey” for the purposes of this claim, on 21 August 1999. She found some of the questions confusing. She completed a further dietary survey on an unknown date. To complete the surveys Mrs. Smith was assisted by her step daughter Jennifer Fletcher and sister-in-law Annie Smith. They were able to provide information about Mr. Smith’s pre-war diet and immediate post-war diet.
20. The material relating to Mr. Smith’s diet revealed the following:
Pre-enlistment
·He grew up in a working class family in which money was tight. The only meat ever purchased by his mother was mutton. His mother prepared the mutton in various ways to make it as palatable as possible.
·He had a habit of always cutting the fat off the mutton. He did not eat fat. He ate very little butter on his bread and toast.
World War II
·He told his wife that when he was in Canada he developed a fondness for waffles/hot cakes, maple syrup and bacon. When he was in France he developed a taste for pastry items.
Post World War II
·His sister, Annie Joan Smith, had this to say:
“On his return from World II I lived opposite Archie and his wife from 1946 to 1948 and we shared many meals. It was near obvious that Archie’s eating habits had changed during his period overseas. He now ate the fat on chops, roast meat, corned meat etc and he also ate more butter on bread and toast. When I asked Archie about this he said they had all learnt very quickly to eat what they were given during the war. It was a case of do this or go hungry lots of times.”
·His son, Brian J. Smith, said:
“I recall that my father often ate bacon and eggs for breakfast. He was one of the founders of East West Airlines, which commenced operations from the RAAF Base in Tamworth, NSW. He was smug about the expedition with which he could prepare breakfast (bacon & eggs) shower, shave and don his uniform prior to taking the first flight out in the mornings (07.00 dep).
Most of the airports were or had been RAAF bases and the facilities included mess type canteens that prepared a fare that by todays standards could only be described as high fat, stews and the like were kept warm in bain maries and it was normal for an airline pilot to take his lunch, or dinner, in the canteen while his aircraft was being prepared for the next service. Such canteens were still in use at most aerodromes when I started my flying career in the 1960s.
Towards the end of the 1950s my father was spending more time in administration and finally retired from flying to continue a long career in airline management, but for a lot of those years he still took his lunch in the canteen.”
·His daughter, Jennifer Fletcher and the Applicant noted that he was fond of desserts, cream, butter and milk. They said he particularly liked Danish pastries, and he liked a cooked breakfast. All of his meat meals were covered with gravy or sauce. He did not eat much fruit or vegetables.
·After he retired he tried from time to time to reduce his fat intake but with not a lot of success.
21. The records show that Mr. Smith weighed 143 pounds (65kgm) on enlistment, 164 pounds (75 kgm) on discharge, and 114.5 kgm when he retired from the airline business in 1979.
22. The Tribunal heard evidence from Dr. Justin Kenardy, psychologist and specialist in behavioural and rehabilitation medicine. Dr. Kenardy said:
“So that, once the war was over, whatever drive to consume that fat had been established during the war would continue irrespective of factors that were operating on that person’s environment.
That if a person had changed their preference and desire to consume fat during the war, then that would be something that would be related specifically to the fat itself that they’d consumed, not the circumstances of the war. So you would expect that that would generalise into new situations because once they’d left the war circumstances there would be – you would expect to see that that preference and desire to consume fat would continue irrespective of the circumstances that they were in.”
23. The material placed before the Tribunal indicates that:
(a)Prior to World War II, Mr. Smith’s diet was relatively low in animal fat content. He did not like fat. He cut it off his meat. He only ate small quantities of butter.
(b)During World War II he was stationed in Canada, England, France and Belgium and acquired a taste for food which had a higher animal fat content then he had been accustomed to before he enlisted.
(c)On his return to civilian life his eating habits had changed dramatically. He preferred rich foods. He had become a big eater. He preferred a cooked breakfast. He enjoyed pastries with cream.
24. The material placed before the Tribunal does raise a hypothesis connecting Mr. Smith’s death from prostate cancer with the circumstances of his eligible service.
25. Mrs. Lilly Smith, Mrs. Fletcher and Miss Annie Smith supplied information about Mr. Smith’s diet, by way of dietary surveys to expert dieticians, Ms. Linda Kilworth and Dr. Ruth English.
26. Ms. Kilworth calculated that Mr. Smith’s pre-war diet contained animal fat of about 95 gms per day on average. She calculated his post war animal fat consumption at 157 gms per day. That is, Ms. Kilworth calculated an increase in animal fat intake of 65%.
27. The evidence shows that Mr. Smith maintained his high level of animal fat consumption for many years, certainly for more than five years.
28. He was first treated for prostate cancer in 1993. To satisfy the SoP he must have maintained a level of fat consumption at least 40% higher than his pre-war diet for at least five years from 1968 onwards, that is, within 25 years before the clinical onset of the prostate cancer.
29. I find that on the material placed before the Tribunal the relevant SoP is satisfied.
30. Both Ms. Kilworth and Dr. English agree that Mr. Smith was a big eater of foods containing animal fat in his post war years. Dr. English agreed with Ms. Kilworth’s assessment of a post-war animal fat consumption of 157 gm per day. Dr. English said that the fact that Mr. Smith was obese (114kgs) confirmed the figure.
31. Dr. English believes that the answers given to the dietary surveys about Mr. Smith’s pre-war diet are completely unreliable. She believes that if Mr. Smith’s pre-war diet was as meagre as that depicted, he would not have had sufficient food to survive. She prefers to adopt the figure produced by the 1936-38 National Household Food survey, that is, an intake of 126 gms of animal fat per day.
32. If. Dr. English’s figures are used, the increase in animal fat intake from pre-war to post-war diet was 25%. The SoP would not be satisfied.
33. I am conscious of the fact that the dietary surveys are inherently inaccurate because of the difficulty witnesses have in recalling the details of meals eaten by someone else many years ago. Nevertheless, I accept the general thrust of the evidence that Mr. Smith ate very little animal fat as a young man; that he ate rich foods in Canada, England, France and Belgium during his operational service; that he acquired a taste for rich food and continued to eat foods with a high animal fat content, in large amounts, when he returned to civilian life; that he continued that diet high in animal fat content for most of the rest of his life, with the occasional attempt at dieting.
34. I note the concerns that Dr. English has about the accuracy of the dietary surveys and I agree with her that the specific amounts of food noted in those surveys are probably an underestimation in the pre-war section. However, I am satisfied that Mr. Smith had a diet low in animal fat pre-war. I am not prepared to find that his diet contained the Australian average for the time of 126 gm per day.
35. I am not satisfied beyond a reasonable doubt that there is no sufficient ground for determining that the death of Mr. Smith was war-caused.
36. The decision under review is set aside and in substitution the Tribunal determines that the death of Archie John Smith was war-caused.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .....................................................................................
R. Link, AssociateDate/s of Hearing 14,21.3.05; 8.4.05 10,11,12.5.05; 20,22.6.05; 30.9.05
Date of Decision 16 December 2005
Counsel for the Applicant Mr. D. O’Gorman
Solicitor for the Applicant Gilshenan and Luton
Counsel for the Respondent Ms. E. Ford
Solicitor for the Respondent Mr. S. Francis
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