Stevenson and Repatraition Commission

[2005] AATA 1310

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1310

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q1999/134

VETERANS' APPEALS  DIVISION		)
Re		MARY STEVENSON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President Don Muller

Date23 December 2005  

PlaceBrisbane

Decision The Tribunal sets aside the decision under review and in substitution determines that the death of Frank Stevenson was service-related, pursuant to the provisions of 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 – death related to service – decision set aside

Veterans’ Entitlements Act 1986: ss.5C, 7, 8, 13, 120, 120B

REASONS FOR DECISION

Deputy President Don Muller        

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

2.      Mrs. Stevenson claims that her late husband, Frank Stevenson, died from the effects of a war-caused disease, namely prostate cancer.

3.      The elements of Mrs. Stevenson’s claim are:

(a)Frank Stevenson died from the effects of prostate cancer.

(b)For many years prior to his death from prostate cancer, Mr. Stevenson 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. Stevenson’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. Stevenson’s death from prostate cancer was related to his RAAF service.

4.      Mrs. Stevenson’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. Stevenson seeks a review of that decision.

Material Placed Before the Tribunal

7.      The following matters are not in dispute and the Tribunal finds:

(a)Frank Stevenson was born at Brisbane, Queensland on 17 March 1926.

(b)He enlisted in the RAAF on 13 April 1944.  He served as a radar mechanic.

(c)He served in the RAAF for approximately 2 years and was discharged on 14 June 1946.

(d)He did not render operational service as he did not serve outside Australia.   He did his training in Melbourne for 10 months and he spent four months in Townsville, but the rest of his service was rendered in southern Queensland.

(e)He rendered eligible war service from 13 April 1944 to 14 June 1946 pursuant to the provisions of the VEA.

(f)Frank Stevenson married Mary Stevenson on 25 June 1949. They had 3 children.

(g)He was first diagnosed with prostate cancer in 1993.

(h)He died on 3 February 1994.  The cause of death was (a) terminal cardiorespiratory failure – 1 hour, and (b) metastatic prostate cancer.

(i)He was a “veteran” within the meaning of that term in section 5C(1) of the VEA.

8.      The material relating to Mr. Stevenson and his diet was provided by way of statements, oral evidence and questionnaire by his widow, the applicant, Mary Stevenson, and his daughters, Patricia Brennan and Gloria O’Sullivan.  Their evidence was to the following effect:

(a)Mr. and Mrs. Stevenson knew each other as they were growing up.  They lived across the road from each other.  They were friends before he joined the RAAF.  They married in 1949.

(b)Mrs. Stevenson does not know anything specific about Mr. Stevenson’s pre-service diet.  However, she got to know how his mother cooked and how she prepared food.

(c)Mr. Stevenson had difficulty with RAAF food.  He told his wife and daughters that he could not eat corn or rice after his RAAF service because of the way it was presented in the RAAF Mess. He told them that he used to smother the RAAF food with butter and salt to make it palatable.

(d)He developed a taste for adding large quantities of butter and salt to his food while he was in the RAAF and this habit continued into his civilian life after he left the RAAF.

(e)Post-service Mr. Stevenson worked as a commercial traveller selling tools to hardware stores around Brisbane. 

(f)Mr. Stevenson had been an active man.  He built the family house. He played tennis and golf about twice a week in the 1950s.

(g)Mr. and Mrs. Stevenson lived with Mr. Stevenson’s parents at Coorparoo for the first seven years of their marriage. While living with Mr. Stevenson’s parents, his mother did all the cooking. Mrs. Stevenson learnt to cook from Mr. Stevenson’s mother. After moving out Mrs. Stevenson cooked meals for her husband in a similar style.

(h)Both Mr. Stevenson’s mother and Mrs Stevenson would cook roasts, steak, chops, vegetables and meat pies. Desserts consisted of jelly, tinned fruit, custard and rice puddings.

(i)For breakfast they would sometimes eat bacon and eggs, or scrambled eggs on Sunday.

(j)Mr. Stevenson would sometimes have morning and afternoon tea, but he usually only had a hot drink. Sometimes he ate biscuits or cake.

(k)Mr. Stevenson liked butter and would use extra butter on everything. He put butter on steak, vegetables and bread in large amounts.  He is described as having “slathered” butter on his steak and bread “very thickly”.

(l)Family and non-family members would regularly comment on how much butter he would eat.

(m)The rest of the family did not particularly like butter.  They used margarine.  Mr. Stevenson would not eat margarine.

(n)Mrs. Stevenson did not drive a car.  Mr. Stevenson did the weekly grocery shopping.  He used to buy large quantities of butter each week.

(o)Mr. Stevenson grew in weight to over 20 stone (127kgm) in the 1960s.  He was told by his doctor that he should lose weight.

9.      The Tribunal heard evidence from Dr. Justin Kenardy, psychologist and specialist in behavioural and rehabilitation medicine.  Dr. Kenard 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.”

Legislative Framework

10. 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.

11.     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.

12.     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.

13.     The standard of proof in the case of eligible service which is not operational service is contained in s.120(4) of the VEA.  It provides:

“(4)  Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arsing under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

Note:  this subsection is affected by section 120B”

14.     Section 120B provides for that, for the purposes of subsection 120(4), to be reasonably satisfied that the death of a person was war-caused the material must raise a connection between the death of the person and some particular service rendered by the person and there is in force a SoP that upholds the contention. 

15.In this case the relevant SoP is No.29 of 2005 and the relevant parts 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 exist before it can be said that, on the balance of probabilities, malignant neoplasm of the prostate or death from malignant neoplasm of the prostate is connected with the circumstances of a person’s relevant service is:

….

(a)increasing animal fat consumption by at least 40% and to at least 50gm/day, and maintaining these levels for at least ten years within the twenty-five years before the clinical onset of malignant neoplasm of the prostate.

Consideration of the Material Placed before the Tribunal

16.     The evidence does not specifically reveal the diet of Mr. Stevenson prior to his RAAF service but it is reasonable to infer that he ate the food prepared by his mother.  The evidence suggests that his mother prepared much the same type of food before his RAAF service as she, and his wife, prepared after his RAAF service.

17.     The evidence about Mr. Stevenson’s RAAF diet is to the effect that he got into the habit of putting large amounts of butter and salt on his food to make it palatable.

18.     The evidence about Mr. Stevenson’s post RAAF diet is that his habit of putting large amounts of butter and salt on his food continued in his civilian life for many years.  This is confirmed by his huge increase in weight.

19.     I am satisfied that Mr. Stevenson’s post RAAF habit of putting large amounts of butter on his food arose out of the habit he acquired while he served in the RAAF.

20.     The dietician experts agree that the SoP is well and truly satisfied.

21.     Dr. English does not accept that the answers given to the dietary surveys have been accurate. She believes that there has been a significant over-estimation of Mr. Stevenson’s post RAAF intake of animal fat.  However, I note that she has ascribed weights of 70 and 80 kgm to Mr. Stevenson.  The evidence is that he weighed substantially more than that in the 1960s.

22.     Whilst I accept that the dietary surveys are notoriously inaccurate, I find that in this case on balance the SoP is satisfied and that Mr Stevenson’s post war high intake of animal fat is connected with the circumstances of his RAAF service.

23.     Consequently, I find that the death of Frank Stevenson was war-caused.

24.     The decision under review is set aside.

I certify that the 24 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  23 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