Smith and Repatriation Commission

[2005] AATA 1236

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1236

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q1997/630

VETERANS' APPEALS  DIVISION		)
Re		BERYL JOAN SMITH

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President Don Muller

Date15 December 2005

PlaceBrisbane

Decision The Tribunal sets aside the decision under review and in substitution determines that the death of Cecil Frederick Smith was war-caused within the meaning of that term in the Veterans’ Entitlements Act 1986.

.................SIGNED.............................

D.W. MULLER
  DEPUTY PRESIDENT

Administrative

Appeals

Tribunal

 

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q1997/630

VETERANS’ APPEALS DIVISION		)
Re		BERYL JOAN SMITH

Applicant

And REPATRIATION COMMISSION

Respondent

CORRIGENDUM [2005] AATA 1236

Tribunal Deputy President Don Muller

Date16 December 2005

PlaceBrisbane

I DIRECT THAT paragraph 27 of the Tribunal’s Reasons for Decision should read:

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.

SIGNED
  D.W. MULLER  DEPUTY PRESIDENT

CATCHWORDS

VETERANS’ AFFAIRS – death from prostate cancer as a result of a diet high in animal fat – war-caused – decision set aside

Veterans’ Entitlements Act 1986: ss 7, 8, 13, 120, 120A and 196B

REASONS FOR DECISION

15 December 2005 Deputy President Don Muller        

1. Beryl Joan Smith, the Applicant, has claimed a widows’ pension, pursuant to section 13 of the Veterans’ Entitlements Act 1986 (the VEA).

2.      She claims that her late husband, Cecil Frederick Smith, died from the effects of a war-caused disease, namely, prostate cancer.

3.      The elements of her claim are:

(a)Cecil Frederick 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 a risk factor in the contraction of prostate cancer.

(d)Mr. Smith’s habit of eating a diet with a high animal fat content arose as a result of the very poor diet he had when he served with the Australian Military Forces in New Guinea during World War II.

(e)The privations that he suffered whilst serving in New Guinea had the effect, when he returned to civilian life, of causing him to eat “decent food”, meat and dairy products, which he continued to do for the rest of his life.

(f)Thus, Mr. Smith’s death from prostate cancer was related to his Army service.

4.Mrs Smith’s claim has been rejected by the Respondent on the grounds that her late husband’s death is 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:

the veteran’s pre-war service diet contained animal fat of X grams per day on average;

the veteran’s war service diet, provided to him by the Army, was very poor, bordering on subsistence level;

the poor diet on eligible service was such that it caused 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)Cecil Fredrick Smith was born in Nambour, Queensland on 18 August 1921.

(b)He enlisted in the Australian Military Forces on 24 November 1941.

(c)During his time in the Army he rendered operational service during World War II in New Guinea. 

(d)He served for over three years and was discharged on 21 October 1944.

(e)Mr Smith married Beryl Joan Smith on 29 October 1949.  They had known each other since 1946.

(f)He was diagnosed with prostate cancer on 7 April 1991. 

(g)He died on 10 May 1994.  The cause of death was carcinoma of prostate – 12 months.

(h)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, Nora Mary Elizabeth Rose, who was able to give evidence about Mr. Smith’s pre-war diet.

(b)His widow, the Applicant, who gave evidence about what he had told her of his diet whilst on service in New Guinea and about his civilian diet.

20.     The material relating to Mr. Smith’s diet revealed the following:

(a)Mr. Smith grew up on a mixed farm which consisted of keeping some milking cows and growing sugar cane and pineapples.  They had no electricity and no refrigeration.  They grew all of their own vegetables and fruit.  They had a few “chooks”.  Meat was in short supply.  “Dad got the biggest helping and the kids got lots of vegetables”.  They usually had a roast on Sunday.  They sometimes had scrambled eggs for an evening meal. The only poultry they ate was when a hen was killed because it was old and not laying.  They ate the mushrooms which grew in the wet weather.   They ate home-made bread and rolled oats.  They usually drank skim milk because their father sold the cream to a local butter and cheese factory.  They ate a lot of fruit salads.  They had sausages “now and again”.

(b)When Mr. Smith served in New Guinea he was a member of a group which kept constantly on the move.  His group continually had problems with the supply to them of food ration packs.  They were often short of food.  He told his wife that his food supply in New Guinea was only at subsistence level and that it was tasteless.

(c)When Mr. Smith returned to civilian life he used to remark that he had not had “decent food” in the Army.  He seemed to react to the fact by developing a large appetite for what he called “decent food”.  That is, he began to eat more meat, full cream milk and cheese.

(d)After his return to civilian life he worked for some years on his father’s farm.   He then bought his own dairy farm in 1953, onto which he moved with his wife, the Applicant.  They made their own butter and cheese.

(e)The farm was hard work.

(f)For breakfast Mr. Smith usually had cereal and bacon and eggs, or sausage and eggs.  He usually had morning tea consisting of a piece of date loaf or sandwich.  Lunch consisted of cold meat sandwiches with salad.

(g)Mr. Smith did not eat much bread and butter, however, when Mrs. Smith made stew, which was fairly often, Mr. Smith would always have bread without butter to dip into his stew and gravy.  They usually had a roast at weekends and sometimes had chops during the week.

(h)The Smiths normally had dessert, generally custard with fruit or  puddings prepared by Mrs. Smith.

(i)The Smiths sold their farm in 1989.  Mr. Smith was not then required to work so hard.  Their diet changed.  They ate more salads and vegetables.

21.     Mrs. Smith and Mrs. Rose supplied information about Mr. Smith’s diet, by way of dietary surveys to expert dieticians, Ben Desbrow and Dr. Ruth English.

22.     Both dieticians agree that the answers to the post war dietary parts of the survey are valid and that the relevant SoP is satisfied in relation to the minimum required to produce prostate cancer.

23.     Dr. English does not think that the answers to these parts of the surveys relating to Mr. Smith’s pre-war diet are valid.  She believes that to survive he would have needed to ingest more animal fat than that revealed.  However, even if he had eaten the average Australian diet for the era, his circumstances would still satisfy the SoP.

24.     I accept that the post war diet of Mr. Smith, as outlined above, was linked to the food privations he suffered while he was in New Guinea.

25.     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.

26.     The hypothesis fits the template of the SoP quoted above.  Consequently, the hypothesis is reasonable.

27.     I am not satisfied beyond a reasonable doubt that there is no sufficient ground for determining that the death of Mr. Rankin was war-caused.

28.     The decision under review is set aside and in substitution the Tribunal determines that the death of Cecil Frederick Smith was war-caused.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .....................................................................................
           R. Link, Associate

Date/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   15 December 2005
Counsel for the Applicant           Mr. A. Harding
Solicitor for the Applicant            Gilshenan and Luton
Counsel for the Respondent      Ms. E. Ford
Solicitor for the Respondent       Mr.S. Francis