Thomas and Repatriation Commission

[2004] AATA 534

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 534

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No D2003/1

VETERANS' APPEALS  DIVISION		)
Re		JACK WILLIAM THOMAS

Applicant

And REPATRIATION COMMISSION  

Respondent

DECISION

Tribunal Deputy President Don Muller

Date26 May 2004  

PlaceBrisbane

Decision The Tribunal affirms the decision that the malignant neoplasm of the prostate of Jack William Thomas is not war-caused within the meaning of that term in the Veterans’ Entitlements Act 1986.

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

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

VETERANS – Disability pension – prostate cancer – consumption of animal fat by Applicant – material did not raise hypothesis connecting disease to war service - decision affirmed

Veterans’ Entitlements Act 1986: s.9, 13, 120, 120A

REASONS FOR DECISION

Deputy President Don Muller        

1.      This matter was remitted to the AAT from the Federal Court for rehearing.  The original AAT hearing was heard by Senior Member Beddoe.  There had been a number of changes to the Statement of Principles determined by the Repatriation Medical Authority for malignant neoplasm of the prostate.  The Federal Court ruled that the incorrect SoP had been applied by the AAT.

2.      At this hearing it was agreed between the parties that the material to be placed before the AAT consist of the Appeal Papers, plus a Report by Dr. Ruth English, Nutrition Consultant, dated 18 October 2003.  Those parts of the Appeal Papers of specific relevance were agreed to be:

(a)The original T-documents

(b)A one page undated statement of Mr. Thomas

(c)A letter from Dr. English to Mrs Bishop dated 24 May 2000

(d)A dietary survey completed by Mr. Thomas

(e)Two reports by Dr. English, dated August 1998 and April 2000

(f)Transcripts of the evidence from the AAT hearings on 13 November 1998 and 3 November 2000.

3.      Jack William Thomas, the Applicant, was born on 2 July 1914.  In June 1996, he was diagnosed as having malignant neoplasm of the prostate.  He claims that his prostate cancer (PC) is “war-caused” within the meaning of that term in section 9 of the Veterans’ Entitlements Act 1986 (the Act).

4.      On 29 October 1996 Mr. Thomas claimed for medical treatment and pension by way of compensation for incapacity from the PC, pursuant to section 13 of the Act.  A pension is payable under the Act to a veteran who is incapacitated due to a war-caused disease.

5. Under section 9 of the Act a disease is taken to be war-caused if it arose out of, or was attributable to any eligible war service rendered by the veteran.

6.      In support of his application Mr. Thomas claimed that while he was serving with the Australian Army in New Guinea during World War II he was exposed to the aerial spraying of pesticides and he was required to take Atebrin tablets for malaria.  He also claimed that he suffered from continuing urinary tract infections.  He put forward these matters as possible causes of his PC.

7.      On 11 November 1996, a delegate of the Repatriation Commission refused Mr. Thomas’ claim for medical treatment and pension for incapacity from PC on the ground that the condition was not war-caused.

8.      Mr. Thomas applied to the Veterans’ Review Board (VRB) for review of the Repatriation Commission’s decision.  On 7 August 1997, the VRB affirmed the decision that Mr. Thomas’ PC was not war-caused.  In its “Reasons for Decision”, the VRB pointed out that the only risk factors for PC, accepted by the Repatriation Medical Authority, were:

(a)Being exposed to herbicides in Vietnam;  or

(b)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;  or

(c)Inability to obtain appropriate clinical management of an existing PC.

The claim was rejected on the grounds that Mr. Thomas had not served in Vietnam, and that no material was placed before the VRB in relation to factors (b) and (c).

9.      In the context of the claim by Mr. Thomas that his PC was war-caused, the only risk factor which could relate to his World War II service in the 1940s was the consumption of animal fat.

10.     Mr. Thomas applied to the AAT for review of the VRB decision.  The AAT hearing began in Darwin on 13 November 1998 before Senior Member Beddoe.  Mr. Thomas was represented by Mr. Hardie who opened his client’s case with the following statement:

“…. the matter simply revolves around whether or not Mr Thomas’s diet changed pre-war and post-war.  And whether the facts raised in the evidence meet the statement of principles concerning prostate cancer.  Our hypothesis is that Mr Thomas has a virtually animal fat free diet before the war, where the animal fat would have consisted solely of a roast on weekends.  And that once enlisting in 1940 his diet changed dramatically, being put on service rations and that that dietary habit continued to this day.”

11.     During the hearing on 13 November 1998, two documents were tendered.  One was a statement by Mr. Thomas.  The other was a paper by Janine Lewis, Consultant Nutritionist, dated July 1998.  Mr. Thomas gave evidence and was cross-examined.  There was an attempt by the advocate for the Repatriation Commission to tender statements said to contain scientific material produced by two experts.  Neither of the two experts were available to speak to their reports nor to present themselves for cross-examination.  Mr. Beddoe refused to allow the documents to be admitted into evidence.  After submissions from the representatives of the parties the matter was “adjourned indefinitely”.

12.     In his statement tendered on 13 November 1998 Mr. Thomas made the following points (among others):

·     He was born and grew up in a small farming community in Victoria.  He lived at home on a small farmlet outside Warburton, until he enlisted in the Army in 1939.

·     The family diet consisted of a variety of fresh vegetables from their own garden, a feed of rabbit once or twice a week (caught by Jack) and as a special occasion one of the family “chooks” was killed for Sunday lunch.   Other meat was a rarity in their diet, because it was too expensive for the family budget and also the family considered that they ate well enough as it was.

·     After enlistment he was sent to the Middle East.  Whilst in the Middle East he had great difficulty eating some of the food.  He could not tolerate “gold fish” (canned herring in tomato sauce) and as a consequence his diet throughout his war years consisted mainly of tinned bully beef.

·     He also served in Greece, Syria, Palestine and New Guinea.

·     After the war he developed new tastes which included a diet high in fat.

·     He eats fried meat and large quantities of butter, ice cream and cream.

·     He does not carry any excess weight.

13.     During the course of his oral evidence on 13 November 1998, Mr. Thomas gave evidence about his pre-war, war-time and post war diet.  He was also referred to a diet questionnaire prepared by the Department of Veterans’ Affairs.  He answered the questionnaire during the course of his evidence in chief.  A distillation of his evidence in chief, cross examination and answers to the questionnaire revealed the following information about his dietary habits:

1935 TO 1940

·     As a young boy, a young lad, we had quite a lot of rabbits in the back of our paddock.  And I used to trap them.  My main reason for trapping them to start off with was to sell the skins but my mother, she used to cook the rabbits and we’d have rabbits at least twice a week, sometimes three times a week.  And also the chooks, we ate a lot of fowl too.

·     We used to grow vegetables, potatoes, pumpkins, carrots and parsnips, all types of vegetables.

·     Every Sunday we had a roast for dinner.  That was our main roast.  There might’ve been a little bit left over for Monday – cold meat for Monday or something to that effect, but that was about the only time that we did have red meat.  Most times it was roast beef.  (He usually had) ordinarily two or three slices.

·     My mother used to do quite a bit of cooking and we used to have cakes and so forth, sweets like that – most days.

·     I had bread three times a day.  (His father was a baker).

·     (He had) butter or margarine twice per day. I used to take sandwiches for my lunch and I’d have it for breakfast, maybe on toast.

·     We used to have fruit every day almost because we had our own fruit trees.

·     Vegetables or salads every day for dinner at night including boiled or baked potatoes.

·     We had milk every day.  We had our own cow.

·     We used to have porridge every morning.

·     Bacon – very seldom.

·     Sausages – very seldom.

·     We used to have fried eggs quite often of a morning for breakfast – daily.

·     I used to have sugar on my porridge of a morning – sometimes I would have jam on my toast of a morning.

·     Cream – hardly ever.

·     Cheese – didn’t have much of that.

·     Poultry one or two times a week.

·     Rabbits two or three times a week, depending on how many I caught.

·     We used to breed chooks and I suppose we had in excess of 100 chooks most of the time.

·     He also said that when he first left school he became a timber worker for a short time, then he gained an apprenticeship to a motor mechanic at the local garage.  He became a motor mechanic and worked at that trade until his enlistment in 1939 at the age of 25.

1940 TO 1945

·     He was in the Middle East for just over two years.

·     I don’t think we ever had chook or rabbit or anything like that at all in the Army.

·     I know for breakfast of a morning, quite often we used to have scrambled eggs made out of egg powder, which was pretty terrible, I couldn’t eat them actually.

·     .. they used to have stews, we never ever got eggs or bacon or anything at all like that, not in the Middle East anyway we didn’t.

·     Fresh vegetables?  No, mostly tinned.

·     Plenty of bully beef, which I didn’t mind.  I used to eat quite a lot of it as a matter of fact.

·     And what about the tinned fish, did you eat those?  We used to call it gold fish;  herrings and tomato sauce.  No, I couldn’t eat it.  I hated it actually.

·     From the Middle East, where did you go?  Well, we went to Greece and then when we came back we went to Syria, came back to Palestine, we went to Syria, we came back and we went home to Australia.  We were sent to Darwin here for 12 months when we first arrived back.  That was in May 1942.  And then we went back on leave to Victoria, then went up and did invasion training in Queensland and went to New Guinea.

And in New Guinea, was your diet much the same as it had been in the Middle East?  As far as I can remember, yes.

POST WORLD WAR II

·     During the war years Mr. Thomas’ parents moved to the Melbourne suburb of Brighton.  On his return to civilian life, Mr. Thomas lived with his parents at Brighton until he married about 12 months later.

·     Well, we lived in the city in Brighton and there wasn’t any rabbits to catch there and we didn’t have any chooks, so that – they were out as far as our diet was concerned, and my mother just used to buy meat.  I never bothered to ask her why they – diet changed, but it suited me fine.

·     Did it suit you fine because you had become accustomed to that sort of diet?  Well, I had become accustomed to it and I quite liked it, yes.

·     What sort of meat did you have during that time?   Was it the rabbit and the chicken that you were having before the war?   No, no, no.  Meat – I meant beef and lamb and so forth.

·     I liked the diet I had pre-war and I liked the diet I had after the war.

·     And how long did you continue eating meat every day?   Well, had it every day until today, until these days.  Still do.

·     And what other things have you had in – after the war, what other foods were there that were in your diet that may not have been in there pre-war?  Very little.  Like, I can’t say anything that I can – nothing that I can think of.

·     So it’s really the same, other than the meat?  Yes, that’s right.

AFTER MARRIAGE (1946)

·     I think my wife – we were married 12 months after I got out of the Army and she was always a good cook.  As far as I’m concerned, she’s still a good cook and we – I had whatever she dished up.  I didn’t mind what it was.

·     How often would you have had bread;  daily again?  Yes, every day.

Once a day, twice a day?  Well, I used to take my lunch to work with me each day and I quite often had toast for breakfast.  Maybe twice a day.

·     Butter and margarine on both?  Yes, same.  Twice a day.

·     Fruit?  Fruit whenever it was – it was – we always had fruit at home.  We – so we had that whenever I felt like it, so I wouldn’t like to say how often I ate it but it was always there.

·     Beef, mutton, pork;  grilled, roast or stewed?  Yes, we had that pretty near every day.

·     Vegetables or salads?  Every night.

·     Fried potato chips?  No, we didn’t have those very often.

·     Milk?  Yes, milk on breakfast of a morning.

·     Porridge or breakfast cereals again?  Yes, we usually had breakfast cereals.  My wife didn’t like porridge.

·     The bacon?  Yes, we had bacon occasionally too.

So not daily though?  No.

Just occasionally?  No, not – yes, occasionally.

·     Sausages?  Yes, we had sausages maybe once a week.

·     Cream?  Yes.  Yes, we had cream pretty near every night for our dinner with sweets at night.

·     And cheese?  Yes, we had cheese.

Once a day or --?  Yes, I used to like cheese and my wife used to give it to me in my lunch.  Cheese or meat sandwiches or something to that effect in my lunch each day almost.

·     Sugar or jam?  Yes, we used to have that – well, I used to have sugar each day and jam whenever I felt like it, I guess I could say.

·     Fried foods---?  Fried foods;  well, sometimes we would have fried eggs, sometimes we’d have fried sausages and sometimes fried chops and all sorts of things.

·     Now, when did you acquire your taste for cream?  Well, after the war I started working at a place called ‘United Modern Creameries’ in Richmond in Victoria and there was always plenty of cream there and I could always take cream home with me, which I did, and that’s when I first acquired a taste for it.

14.     The hearing did not resume until two years later on 3 November 2000.   The parties and the Tribunal had agreed to allow the Respondent time for the preparation of statements regarding the relevance of two reports, and also await the result of other matters concerning claims for prostate cancer then being heard by the President of the AAT.

15.     During the adjournment Mr. Thomas completed a dietary survey.  In that survey he was asked to record his daily eating pattern “Pre-World War 2” and “Post-War”.  His answers were:

(a)BEFORE ENLISTMENT:

Breakfast:                Bacon and eggs on toast, black tea.  (He also ticked a box to give effect to an answer that he had about four slices of ham/bacon once per day.)

Mid-morning:         Biscuits and cheese, black tea

Lunch:                   2 sandwiches sometimes salad cheese or meat

Mid-afternoon:      Nil

Dinner:                    Baked rabbit, chooks or beef with vegetables, weekends roast of beef.

Late evening:        nil.

(b)POST-WAR

Breakfast:               Bacon and eggs on toast, black coffee

Mid-morning:         Biscuits, cheese, coffee

Lunch:  2 sandwiches, meat cheese or salad coffee

Mid-Afternoon:      Nil.

Dinner:                   Roast of beef, stew, chops or sausages with potatoes, pumpkin, peas or beans, fruit, ice cream and cream, sometimes trifle

Late evening:        Nil.

16.     The dietary survey also had a section dealing with sporting activities and exercise.  Mr. Thomas’ answers to the questions were:

(a)Before World War Two:  football, cricket, golf, tennis

(b)During service:  mainly football

(c)After World War Two:  football, cricket, tennis, golf

Football -       four hours weekly (approx)

Cricket -        six hours weekly (approx)

Golf -              two hours weekly (approx)

Tennis -         two hours weekly (approx)

17.     When the hearing resumed in November 2000, Mr. Thomas was re-called to give further evidence.  He was then represented by Mr. Piper, solicitor.  He repeated some of the evidence which he had given in November 1998, but he also gave further evidence about his diet (pre-war, wartime and post war).  The transcript reveals the following:

“MR PIPER:      During the war, Mr Thomas, what were your rations – what were the food that you consumed during the years of service?  Well, I suppose I could say mainly bully beef. That was stable ration as far as I was concerned. A lot of the things that they used to put up for us for breakfast, for instance, they’d cook up powdered eggs and I just couldn’t eat that.  Couldn’t eat it at all.  Quite often I would go back to my tent, have a tin of bully beef or something to that effect.  And it was the same with – might have lunch – they might have – well goldfish we used to call them.  Herrings in tomato sauce and I just couldn’t eat them either. They used to make me feel sick so therefore I would go on bully beef again if I could get it.  But I can’t remember altogether exactly what we had for tea.  I know we used to have stews made up out of different things that they put up.  They weren’t too bad.  I could eat that all right.  But the fish things they used to put up, no I just couldn’t stomach them at all.

So would you have maybe consumed more fully beef than some of the others because you didn’t eat this fish?  Yes, I did, that is for sure.

Now you served between 1939 and 1945?  That is correct.

And what you have just been saying applies throughout that whole period does it?  Yes, right through the whole period, that is correct.

..

Right.  Now on the question of what you might eat first thing in the morning.  Do you remember what you had for breakfast back in those days?  Well, my mother used to make porridge. We had porridge and we had chooks so we used to have eggs.

Right, thanks?  Eggs on toast maybe with the porridge.

Now, Mr Thomas, if you look at the dietary survey form that is in front of you.

…

MR PIPER:  Turn to page five, Mr Thomas.  Now can you say that at the top of the page the heading is Period 1 Pre-World War 2 before  …?  Yes, that is right.

And then as you go down the page in the second box can you indicate whether that has been accurately filled in by yourself?  No, as a matter of fact it is not.

All right, in what respect?  I’ve got ham and bacon, day times once day.  I ticked day times 1 – it’s meant I had it every day but I didn’t.  We didn’t have ham or bacon ever.  To my knowledge I just can’t remember ever having it

…...

MR. DERRINGTON:  When you first returned home you lived with your parents is that right?  Yes, that is right.

And how long had they been there to your knowledge, how long had they been in Brighton before you got home?  Before I got married?

No, sorry?  I was married about a bit over 12 months after I got discharged from the army.  They had been in Brighton – well I can’t tell you exactly but it had been less than a year.

Okay, right.  And your mother, I take it, prepared the food for the family then?  Yes, that is right.

And you came back and fitted in with the family, you lived there with them?  Yes, of course.

Did you have any brothers and sisters?  Yes, I had a brother and two sisters.

Now, in the evenings, I take it your – so, when you got back there was it your mother’s habit to prepare bacon and eggs for breakfast there?  Sometimes she did, that is correct, sometimes she did.

With that, would your brothers and sisters eat bacon and eggs?  Yes, they would.

…. Your father was there as well?  Yes, he was there.

And he would eat bacon and eggs?  Mm.

Yes.  They didn’t have rabbit or chicken there but did your family as a rule eat meat at night nevertheless for dinner?  Almost every night in Melbourne, yes.

What type of meat would your mother buy?  I’ve got no idea.  I used to just eat it.”

18.     Evidence was given by Dr. Ruth English on 3 November 2000, and again at this rehearing on 16 February 2004.  Her reports and her evidence were to the effect that Mr. Thomas’ diet pre-war and post-war contained the following quantities of animal fat:

Pre-War Diet:           66.6 gms of animal fat per day (excluding chicken and rabbit foods)

84.7 gms of animal fat per day (including chicken, rabbit and eggs)

Post-War Diet:         79.4 gms of animal fat per day (excluding eggs)

90.6 gms of animal fat per day (including eggs)

At the rehearing on 16 February 2004, she was asked specifically to comment on Mr. Thomas’ pre-war diet based on the assumption that he did not in fact ever eat bacon or ham for breakfast each day.  Her summary was follows:

“The principal finding of this nutrition report with recalculations of the amended pre-war return of Mr Thomas, is that his pre-war diet with an animal fat intake of 34.7g/day (SoP – Instrument 190/191 of 1996) and a total energy intake of 6,544 kJ/day, is clearly invalid.  The application of the SoP of 1996 is used throughout this report, as most favourable to Mr Thomas’s Application.  This level of energy intake falls far short of the veteran’s energy requirement of 12,070 kJ/day.  Applying accepted scientific principles of physiology and energy exchange, this energy discrepancy would result in a weekly weight loss of 1.2 kg with an unadjusted yearly weight loss of 61 kg.  It is scientifically impossible and beyond reasonable doubt that Mr Thomas (whose enlistment weight was 72.3 kg) was losing such an excessive amount of his body weight every year on his pre-war diet.  The only scientific explanation for the large variation between the energy intake calculated from the veteran’s pre-war diet return and his energy requirement, is that the pre-war diet completed by Mr Thomas is clearly invalid, and the proposition unacceptable that it satisfies the criteria of the SoP on Malignant Neoplasm of the Prostate, as a baseline record of animal fat intake.

The above conclusion is supported by a comparison of Mr Thomas’s pre-war diet with community food patterns and nutrient intakes, as documented in the 1936-38 household dietary survey of Australians.  The average intake of animal fat of adult males was 122.0g/day and the average intake of energy was 15.830 kJ/day.  As Mr Thomas clearly stated several times that he could not remember details of his pre-war diet during his evidence to the AAT Hearing on 3 November 2000, it is suggested that one option is to adopt the 1936-38 values as representative of the veteran’s pre-war diet.  The intake date from the 1936-38 dietary survey has been adopted as a pre-war reference intake for most applications in the Queensland Grouped Action for Prostate Cancer.

In this case, Mr Thomas’s post-war intake of animal fat of 79.4 g animal fat/day would not meet the criteria of the SoP for Malignant Neoplasm of the Prostate.  One other option is the adjustment of the pre-war animal fat intake to meet the daily energy requirement.  This would result in an animal fat intake of 64.0g/day (SoP of 1996) i.e. a post-war increase of 15.4g, i.e. 24.1 percent.  This increase would not meet the SoP criteria of an increase in animal fat intake of a minimum of 40 percent.”

19.     The reports of the two Nutritionists, Mrs. Lewis and Dr. English contain material which leads to the following conclusions:

(a)The total fat level of the civilian diet before World War 2 for an adult male was high (range 130-149 gms/head/day).  The fat consumed was mainly animal fat because of the then limited availability of non-animal sources of fat.  The level of animal fat was estimated to have been in the range 114-130 gms/head/day.

(b)An analysis of the civilian and service ration diets during World War II indicates that (except for a later amended ration for New Guinea and the Pacific Islands), the service rations operating in World War 2 did not contain a higher level of animal fat than the civilian diet for an adult male.

Dr. English reported:

“For the service rations operating within Australia, the animal fat content ranged from 78.5 to 88.8 percent of that of the civilian diet.  The service rations available in the Middle East, and in New Guinea and Pacific Islands approximated the animal fat level of the civilian diet (96.2 and 92.8% respectively), with the amended ration for New Guinea and the Pacific Islands exceeding that of the civilian diet by 8.0 percent.  Overall it can be concluded that there is no evidence from the analysis of civilian and service diets that the rations available to servicemen during the Second World War contained excessive amounts of animal fat compared to civilian diets.”

(c)Ms. Lewis reported that her research showed that:

(i)Mutton separable lean of the 1930s contained 6% more fat than lamb separable lean analysed in the 1980s.

(ii)Beef lean and separable fat of the 1930s contained about 6% more fat than the same meat 50 years later.

(iii)An Advisory Council on Nutrition (1938) report indicated that Commonwealth specifications for tinned meat and vegetable dishes specified that the ingoing meat should have no more than 10% fat.  The report noted that instructions were given to purchasers to procure meat of “trade quality” rather than fattier “prime quality”.

20.     Mr. Thomas’ service records show that at his medical examination on 3 October 1939, he weighed 159 pounds (72 kgm).  At his examination prior to discharge on 11 October 1945, he weighed 165 pounds (75kgm).

21.     Mr. Thomas had “operational service” within the meaning of that term in the Act.  Therefore the standard of proof to be applied in considering his claim is that provided in s.120(1) of the Act, plus the considerations provided in sections 120(3) and 120A.

·Under s.120(1) of the Act the Respondent is obliged to determine that the disease was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

·Under s.120(3) of the Act the Respondent is obliged to be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the disease was war-caused if, after consideration of the material before it, the Respondent is of the opinion that that material does not raise a reasonable hypothesis connecting the disease with the war-service of the veteran.

·Under s.120A of the Act, for the purposes of s.120(3), a hypothesis connecting a disease with war-service is reasonable only if there is an SoP that upholds that hypothesis.

22.     The material placed before the Tribunal indicates that in the years before he enlisted in the Army, Mr. Thomas had a diet which included milk, bread, eggs, butter, vegetables, lots of rabbits and “chooks” and roast beef on Sundays.  He apparently included ham and bacon as part of his pre-war diet on a questionnaire but he later gave evidence that he had done so by mistake.

23.     The effect of the evidence of Dr. English given on 16 February 2004 was that if Mr. Thomas eliminated a daily ration of ham or bacon from his pre-war diet he would have lost 61 kgm in body weight per year.  I take the implication to be that he would have died from malnutrition if his diet was as he claimed.  Dr. English came to her assessment of Mr. Thomas’ animal fat intake based on the definition of “animal fat” in SoP No. 191 of 1996, which included fat contained in beef, veal, pork, mutton or lamb or offal, plus dairy products, but excluded rabbit and poultry.  The later SoP No. 84 of 1999 has a definition for “animal fat” which includes fat contained in or derived from meat, other flesh or offal from animals (including birds), and dairy products.  That is, the later SoP includes animal fat contained in rabbits, poultry and eggs.

24.     A substantial part of Mr. Thomas’ pre-war diet consisted of rabbits, poultry and eggs. It seems to me to be absurd to rely on an analysis of Mr. Thomas pre-war animal fat consumption based on the definition contained in SoP No. 191 of 1996 which excludes most of his actual animal fat diet.

25.     The material presented to the Tribunal indicates that whatever Mr. Thomas’ pre-war diet was, it was sufficiently high in animal fat content to allow him to have the energy to play football, golf, cricket and tennis.  He had enough energy to work as a motor-mechanic and to catch rabbits.  He regarded his mother as a good cook.  He ate whatever she put in front of him.  He regarded himself as well fed.  The original assessment by Dr. English that Mr. Thomas’ pre-war diet contained 84.7gm of animal fat per day, was probably the most accurate of the assessments available.  Even this figure would have put him well below the average for daily animal fat consumption pre-war (114-130 gm/day).

26.     The material indicates that during his war years Mr. Thomas ate mostly bully-beef and stews.  He did not eat tinned herring, nor did he eat powdered egg.  The fat content of his food during his time in the Army was probably about the same or even  less than it would have been in civilian life, unless he received the revised rations in New Guinea towards the end of the war.

27.     After he returned to civilian life, Mr. Thomas lived with his parents who had moved to Melbourne.  His diet changed in that he ate no rabbits, less poultry and more red meat.  His brother and two sisters also lived at home and they all ate the same type of meals.  He ate whatever his mother put in front of him.  He had no input into what meat was bought, nor into what the daily menu would be.  He regarded himself as having eaten well while he lived at home.

28.     He got married in 1946.  He regarded his wife as a good cook.  He ate whatever she put in front of him.  He had no input into the types of meat cooked, nor into what was put in front of him.  He believed that he ate well.

29.     Mr. Thomas later obtained a job in a creamery.  He was allowed to take cream home from work.  He then developed a taste for cream. The family would have cream or ice-cream and fruit for desert on most nights.  This change in diet increased his daily animal fat intake.

30.     The material shows that Mr. Thomas’ post war diet probably contained more animal fat than his pre-war diet but that it was due solely to what his mother and then his wife put in front of him and had absolutely nothing to do with his war service.

31.     The material raises no hypothesis which connects Mr. Thomas’ PC with his war service.

32.     Consequently, I am satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that Mr. Thomas’ PC is war-caused.

33.     The decision to reject the claim for medical expenses and pension for malignant neoplasm of the prostate is affirmed.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .....................................................................................
           C. O’Donovan, Associate

Date/s of Hearing   8.12.03, 16.2.04
Date of Decision  26 May 2004
Solicitor for the Applicant           Mr. Piper  
Counsel for the Respondent     Ms. E. Ford
Solicitor for the Respondent       Australian Government Solicitor