Thomas and Repatriation Commission - [2002] AATA 298

DECISION AND REASONS FOR DECISION [2002] AATA 298

ADMINISTRATIVE APPEALS TRIBUNAL )

) No D1997/33

VETERANS' APPEALS DIVISION         )
           Re      JACK WILLIAM THOMAS
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr K L Beddoe, Senior Member

Date2 May 2002
PlaceBrisbane

Decision      The Tribunal sets aside the decision under review and in substitution determines that the applicant's condition, malignant neoplasm of the prostate was war-caused. The matter is remitted to the respondent for assessment.
  (Sgd) K L Beddoe
  (Senior Member)

Decision No: 298/2002

CATCHWORDS
VETERANS' AFFAIRS -– disability pension - whether carcinoma of prostate war-caused - whether a reasonable hypothesis arose connecting the veteran's service with condition of malignant neoplasm of the prostate - whether there was an increase in animal fat consumption by at least 40% and to at least 70 grams/day for at least 20 years before clinical onset of malignant neoplasm

Veterans' Entitlements Act 1986 ss 5B, 6A, 9, 120(1), 120(3)
Statements of Principle Instrument No. 95 of 1995 as amended by 191 of 1996

Deledio v Repatriation Commission (1997) 47 ALD 261
Gordon v Repatriation Commission [2001] FCA 286
Keeley v Repatriation Commission (2000) 98 FCR 108
Keenan and Repatriation Commission [2000] AATA 707 (17 August 2000)
Rowe and Repatriation Commission [2000] AATA 471 (13 June 2000)
Towle and Repatriation Commission [2000] AATA 706 (17 August 2000)

REASONS FOR DECISION

2 May 2002 Mr K L Beddoe, Senior Member

The applicant lodged a claim for an invalidity pension with the respondent based upon his having prostate cancer later diagnosed as malignant neoplasm of the prostate. The application was refused by a delegate of the respondent on 11 November 1996 on the ground that the condition was not war caused within the terms of s 9 of the Veterans' Entitlements Act 1986 ("the Act"). The Veterans' Review Board affirmed that decision on 7 August 1997.
The applicant sought review of that decision in this Tribunal by application dated 20 October 1997.
The matter was initially heard before me on 13 November 1998. Mr Hardie of Counsel, appeared for the applicant. Mr Hardie called the applicant as a witness. Ms Bevan represented the respondent. The documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the T Documents") were before me. The following further documents were tendered as exhibits:

Exhibit A Statement of J. W. Thomas
Exhibit B Paper by Janine Lewis, Consultant Nutritionist – "Nutrient Analysis of Ration Scales – World War 2" dated July 1998

The matter was adjourned to allow the respondent to prepare statements regarding the relevance of two reports. The applicant was given the right of reply. In later interlocutory matters Ms Ford of Counsel took over conduct of the matter for the respondent.
On 10 November 1999, I decided and directed (Decision No 842/1999) that a report of Justin Kenardy, PH.D, Director of Clinical Psychology Programs, University of Queensland entitled "Background Report; Veterans' Affairs Consultancy" dated March 1998; and a report of Dr Ruth English AO, Nutrition Consultant, entitled: "Animal Fat in the Australian Diet including the Armed Services" Rations in World War 2 – Scientific Review for Department of Veterans' Affairs dated August 1998 could be tendered as evidence before the Tribunal provided the authors were made available for cross-examination by the applicant's counsel and provided the respondents did not seek to qualify the relevant SoP.
The hearing was to resume on 19 April 2000. However, the resumed hearing was adjourned pending a class action before the AAT which was thought to be relevant to this matter. The hearing was resumed on 3 November 2000. Mr Piper appeared for the applicant and Mr Derrington appeared for the respondent. Further documents were tendered as follows:

Exhibit C Paper by Dr Justin Kenardy, PhD, School of Psychology, University of Queensland – "Fat Preference, Consumption and Habit" - dated 27 April 2000
Exhibit D Letter by Dr Ruth English AO, Nutrition Consultant dated 24 May 2000
Exhibit 1 Dietary Survey completed by the Applicant
Exhibit 2 Report by Dr Justin Kenardy, PhD, School of Psychology, University of Queensland – "Background Report: Veterans' Affairs Consultancy" - dated March 1998
Exhibit 3 "Report on the Dietary Questionnaire Return of Veteran J Jack William Thomas by Dr Ruth English AO, Nutrition Consultant"
Exibit 4. Paper – "Animal Fat in the Australian Diet including the Armed Services' Rations I Word War 2 – Scientific Review for Department of Veterans' Affairs by Dr Ruth English AO" dated August 1998

The parties provided written submissions for consideration by the Tribunal.
The applicant served in the Australian Army from 23 October 1939 to 12 October 1945. There is no dispute that his service constitutes operational service as defined by the Veterans' Entitlements Act 1986 ("the Act").
The Evidence
In his oral evidence the applicant was given at the initial hearing and he was recalled at the resumed hearing. He said, in effect, that the history of his diet fell into three distinct scenes based on his pre-war experience, his war service and his post-war experience.
Pre-war the applicant lived with his parents and siblings on a rural property near Warburton, Victoria. It was country living with a high level of self sufficiency as to food. His father was a baker and his mother performed home duties. The family had a regular diet of rabbits and chickens so that red meat was only eaten on Sundays and perhaps Mondays. Eggs were abundant and vegetables were self cultivated.
War time diet was standard Army rations with a preponderance of bully beef, scrambled eggs, based on egg powder, which he didn't eat, and stews. The applicant said he refused to eat herrings in tomato sauce.
Post-war diet changed because of two factors:
(a)his parents had moved to suburban Melbourne; and
(b)shortly after return from service the applicant married.

He said that red meat became a regular item in his diet rather than once or twice per week. He acknowledged that meat was rationed in the post-war years but said that it was a regular item in his diet. He also said that he developed a fondness for ice-cream and cream which were significant in his post-war diet. The post marriage diet was said to be "whatever she dished up". I didn't mind what it was". Unlike his pre-war breakfast diet of porridge and eggs, the applicant said his post-war breakfast was often bacon and eggs.
In so far as the applicant's answers to questions on a dietary survey completed by him were contrary to the oral evidence before the Tribunal, I have considered the dietary survey (Exhibit 1) carefully and concluded that the sworn evidence is more likely to be closer to the truth. My observation of the applicant giving his evidence satisfied me that contradictions between his initial responses to the respondent and his responses to questions in the hearing should be resolved on the basis that the latter are more considered, as to the truth, and more likely to be correct. I accept that the applicant is a witness of truth in the context of his evidence to the Tribunal.

The Applicant's Case

It was contended that the applicant ate a virtually animal fat free diet before the war, where the animal fat would have consisted mostly of a roast on weekends. It was submitted that the applicant was introduced to an increased consumption of animal fat through the food he was provided in the armed services and as a result of this, continued the habit of consuming animal fat beyond his period of service and to this day.
The applicant gave evidence that as a child growing up in Victoria and before he entered the Army, his diet included chicken, rabbit, vegetables, a roast beef on Sundays and goods baked by his mother. His father was a baker and he ate bread and butter between once and three times a day, as well as fruit from the family fruit trees and drank milk from their cow for breakfast.
During the war, particularly on overseas service, the applicant stated that he ate mostly tinned vegetables and bully beef whilst on overseas deployment. After the war, he initially returned to live with his parents. From this point, his diet included red meat every day.
The applicant stated that when he first became ill, he attributed his illness to his being exposed to herbicides during spraying operations carried out once or twice a week on the swamps in New Guinea during the war. The spraying was to control mosquitoes but it also killed small insects and lizards and made some of his comrades ill. The applicant referred to statements provided by some of these friends (T3, pages 29-38).
On cross-examination, the applicant stated that he first acquired his taste for cream when he started working for 'United Modern Creameries' after the war and that he has had cream together with ice-cream virtually every night since then. While I accept that this evidence was honestly given, I am also satisfied that the applicant's pre-war diet included whole milk from the family cow.
It was submitted that whilst the applicant was in the army, he ate service rations and, as he didn't eat the powdered egg or the tinned fish, it was reasonable to assume that he ate more bully beef (and therefore more animal fat) than the strict service ration contained.
It was also submitted that Tables 2 and 9 of Exhibit B "Nutrient Analysis of Ration Scales – World War 2", together with the applicant's evidence and answers to the Departmental Questionnaire, could be relied on to support a hypothesis that the applicant's pre-war diet consisted of a low level of animal fat, no more than 57 grams (unadjusted for wastage). A comparison of this amount of animal fat with those provided at Tables 3, 6, 7, and 8, that is, the amount of animal fat present in the service rations provided in the areas in which the applicant served, indicated an increase in animal fat consumption during the war over that of the applicant's pre-war diet. In fact, it was submitted, a 40% increase calculated on a rounded up figure of 60 grams would only amount to 84 grams, much less than shown in the relevant tables.
Finally, using the tables provided in Exhibit B, it was also submitted that it was reasonable to assume that the applicant's post-war diet contained at least 122 grams of animal fat per day and continued up until the present time. This, it was argued, established the link with the applicant's defence service and satisfied the requirement of increased fat consumption by at least 40% and to at least 70 gram per day for at least 20 years prior to the clinical onset of malignant neoplasm of the prostate in 1996.
The Respondent's Case
It was submitted for the respondent that the decision of Keeley v Repatriation Commission (2000) 98 FCR 108 applies supporting the application of Statement of Principles ("SoP") No. 95 of 1995. It was submitted that the decision in that matter requires this Tribunal to review a decision of the respondent by reference to the SoP in force when the primary decision was made, rather than by reference to the SoP in force at the time of the review by this Tribunal.
However, the respondent argued, if SoP No. 84 of 1999 applies then the applicant would fail under subparagraph 5(c) of that SoP. Subparagraph 5(c) mirrors subparagraph 1(b) (as amended) of the earlier SoP except that "animal fat" in the later SoP includes chicken and rabbit as consumed by the applicant in his pre-service days.
The respondent submitted that for the applicant to succeed the claim must be consistent with the "template" found in the Instrument 95 of 1995 as amended (Deledio v Repatriation Commission (1997) 83FCR 82). The relevant factor that must as a minimum exist before it can be said that the hypothesis comes within the SO P is :
"(b) increasing animal fat consumption by at least 40% , and to at least 70gm/day for a least 20 years before the clinical onset of malignant neoplasm of the prostate; or…"
It was also submitted that the applicant was not always consistent in his evidence. It was suggested that the applicant had, albeit sub-consciously, "reconstructed" his pre-war diet to assist his case.
Attention was drawn to the applicant's statement that he had "always eaten well", yet in his written statement he had indicated that his childhood diet lacked meat to the point that Sunday roast was often their own home-bred chickens. In addition the applicant stated that he ate margarine perhaps twice daily. However, in the Survey he reported that he had margarine either "never or less than once per week".
Further, the respondent pointed to the fact that no methods of cooking, for example the use of lard, to fry eggs, chickens, rabbits or other meats were discussed, despite indicating the use of lard, dripping, suet, margarine never or less than once per week. Finally, in his evidence, the applicant stated that his mother cooked cakes "on most days" but downgraded this to two to four days in the Survey.
The Survey was completed, it was argued, outside of the pressure of the Tribunal and any mistakes would have been corrected before it was returned to the respondent. For these reasons, it was submitted that the applicant's answers in the Survey should be preferred to the applicant' s statements.
It was also submitted that the Survey should be accepted as Dr English had used the Survey to consider the applicant's dietary requirements in relation to fat intake when compared to his age, activities, employment and weight.
The report of Dr English was argued to establish that the increase in animal fat consumption of the applicant was:
(a)on the basis of the 1995 SoP as amended in 1996, an increase of 19% (Exhibit 1); and
(b)on the basis of the 1999 SoP, an increase of 7%.

Considerations

For the applicant to succeed, I am to be satisfied that his malignant neoplasm of the prostate was war-caused unless I am satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. I must be satisfied that the material before me does not raise a reasonable hypothesis to connect that condition with the circumstances of the particular service rendered. The standard of proof in determining whether a reasonable hypothesis has been made out connecting a veteran's death with eligible service is set out in subsections 120(1) and 120(3) of the Act. These sections are set out below:
"120 Standard of proof
(1)       Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note:    This subsection is affected by section 120A.
…
(3)       In applying subsection (1) or (2) 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 the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)       that the injury was a war-caused injury or a defence-caused injury;
(b)       that the disease was a war-caused disease or a defence-caused disease; or
(c)       that the death was war-caused or defence-caused;
as the case may be, 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 injury, disease or death with the circumstances of the particular service rendered by the person.
Note:    This subsection is affected by section 120A."
Subsections 120A(1) and 120A(3) make it necessary, for a claim made on or after 1 June 1994 relating to a veteran's eligible service, to consider any hypothesis connecting a veteran's service with their death against any relevant Statements of Principle (SoPs) issued by the Repatriation Medical Authority ("the RMA") in existence. Section 120 is set out as follows:
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)       This section applies to any of the following claims made on or after 1 June 1994:
          (a)       a claim under Part II that relates to the operational service rendered by a veteran;
          (b)       a claim under Part IV that relates to:
(i)        the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)       the hazardous service rendered by a member of the Forces.
Note 1: Subsections 120 (1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).
(2)       …….
(3)       For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, 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)       a Statement of Principles determined under subsection 196B (2) or (11); or
          (b)       a determination of the Commission under subsection 180A (2);
that upholds the hypothesis.
Note:   See subsection (4) about the application of this subsection.
(4)       Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B (2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
          (a)       the kind of injury suffered by the person; or
          (b)       the kind of disease contracted by the person; or
          (c)       the kind of death met by the person;
as the case may be.
The Repatriation Medical Authority is an independent medical body that issues SoPs based on sound medical–scientific evidence. The SoPs set out the minimum factors relating to service that must exist in order to establish a causal connection between particular diseased, injuries or death and service. In this matter the parties have relied on Instrument 95 of 1995 as amended by 191 of 1996 as the relevant SoP.
As I have stated in my decision of 10 November 1999, paragraph 2 of the instrument has the effect of requiring that the relevant factor be related to service rendered by the veteran. In addition, paragraph 4 includes a detailed definition of "animal fat" to mean fat contained in or derived from meat and dairy products.
However, although I am satisfied that Instrument 95 of 1995 as amended by 191 of 1996 is the relevant SoP in this matter, I have noted that SoP No 84 of 1999 replaced SoP No. 95 of 1995 and No. 191 of 1996 on 9 November 1999.

The inconsistencies identified by the respondent with regard to the applicant's evidence in this matter is not considered of great moment given the difficulties associated with accurate recall in light of the facts of the applicant's age and his considerable life experience. In addition, it must be considered that certain comments can be interpreted many ways. I make particular comment on the applicant's reference to having "always eaten well". This comment alone could refer to the fact that the applicant's diet was always rich in fats, or always of good quantity, or that his appetite for whatever was placed in front of him or prepared by him was a large one.
From the applicant's evidence, I have understood that his diet pre-service was a varied diet containing more white than red meat, and his post-war diet included an increased consumption of cream, ice-cream and red meats. His war-time diet varied depending on his postings but included, although not exclusively, bully beef and tinned vegetables. I have taken into account the foods described in the Service Ration Scales included in the report by Ms Lewis - "Nutrient Analysis of Ration Scales – World War 2" dated July 1998 (Exhibit B). I have also noted differences between the details provided in the dietary survey completed by the applicant during the hearing (Attachment to Exhibit B) and the Dietary Questionnaire relied on by the respondent (Exhibit 3).

I have noted that in Exhibit B, to which the dietary survey is attached, Ms Lewis made a general finding that the male civilian diet in 1944 contained 122 grams of fat. I have made the not unlikely assumption for the purposes of consideration of this matter that such references are to a daily amount.
Ms Lewis, in her report, provided comparative levels of fat in the diets of service men serving in various locations including the Middle East, New Guinea and Northern Australia, areas where the applicant served. Unfortunately, her report does not specifically provided an analysis of the fat content of the applicant's pre-war, war-time and post-war diet to enable me to form any conclusion regarding percentage fat increase in the applicant's diet at relevant times as required by the SoP.
Counsel for the applicant urged me to use the applicant's completed diet survey at the end of this report to calculate the fat content of the applicant's pre-war diet for myself from the figures given in table 2 of the Ms Lewis's report.
Although it is suggested for the applicant that from this calculation, a figure of "no more than 57 grams (unadjusted for wastage)" would represent the fat content of the applicant's pre-war diet, it is not clear, nor has it been shown, how this figure was arrived at.
In attempting to calculate for myself such a figure, I have found Ms Lewis's report to be confusing and perhaps inaccurate. The fat content of butter has been stated to be 39 grams which I find to be doubtful. Using this figure, the amount of fat provided by this one source in the applicant's pre-war diet would amount to 78 grams (ie twice per day). If the amount of fat in margarine was used in the calculation, this amount would be 8.6g according to Ms Lewis' tables.
I have also found that, although the data is presented in what I have presumed to be an average of grams of fat consumed per day, this data has not been clarified to identify the size of the food portion to which this measure of fat content belongs. I have difficulty in converting "food per person as purchased" into individual portions or serving sizes such as cups, teaspoons, or even ounces (as they were) and find it difficult to equate quantities of the applicant's pre-war diet (as provided) with an "average amount".
Average quantities of food consumed by civilian males in 1944 may have been different to those amounts consumed pre-war, for instance, due to relative abundance or otherwise of various foods. In addition, the geographic spread of the population surveyed for the preparation of this report has not been identified. I cannot tell if the data collected relates to city dwelling males only or includes others, and if so, to what extent. Further questions then arise such as does a difference exist between the diets of these two groups and if it does, how do the calculations allow for these differences if indeed any allowance is so made. Finally, how does the "average" consumption relate to the quantities of food and fat consumed by the applicant.
On the whole, I am not satisfied that Ms Lewis' report can assist me in the way Counsel for the applicant have invited me to believe. I am not satisfied that, by using the figures provided with regard to civilian fat consumption in 1944, I can reach a reliable figure indicating the applicant's pre-war fat consumption. In this case, I cannot accept the argument based on this calculation, that there was a much higher than 40% increase in fat consumption by the applicant during the war than before the war.
The respondent has provided an analysis by Dr English of the fat content of the applicant's pre-war diet based on the Departmental Dietary Questionnaire (Exhibit 1). Included in the analysis is an allowance for fat content in butter which amounts to 4.1 grams based on 5 grams per day of butter or one serve without considering whether the applicant ate butter or margarine pre-war. I am persuaded to accept this as a more reasonable fat estimate and question whether Ms Lewis's report might not contain an error in that regard.
Counsel for the applicant submitted that it could be assumed from the applicant's evidence that the applicant ate more bully beef than the service rations contained. I do not see that I can accept this assumption. I can accept, on the applicant's evidence, that he preferred to eat the bully beef rather than the powdered eggs and canned fish.
The applicant also tendered the report "Fat Preference, Consumption and Habit" by Dr Kenardy (Exhibit C) but did not rely on it in written submissions.
The respondent, however, has sought to rely on this document to argue that the applicant's dietary habits were not service related but rather that the applicant had a taste for a high fat diet and as a conscious process "indulged when he had the opportunity, both during and after service". Dr Kenardy's report concludes that overall the evidence in favour of an addictive model of fat over-consumption is very limited.
In Towle and Repatriation Commission [2000] AATA 706 (17 August 2000), a previous decision of this Tribunal, the Tribunal was asked to consider whether the death of a veteran from prostate cancer was related to his increased consumption of fat as a result of his war service. The same report was tendered by the respondent in that matter in support of a similar argument. In that decision, the Tribunal commented (at page 23, paragraph 60):
"The Tribunal considers that included in the many processes operative in the determination of dietary preference a digestion there are factors special to war service. These are physical, psychological and emotional factors. It would be impossible to mention them all as they differ between the three services and they are different for each individual. Some of these factors include separation from normal life for periods of years; periods of panic and fear interspersed with boredom; a lack of privacy; basic camping facilities; dull and repetitive basic cooking and abstinence from and longing for favourite foods. The expert witnesses appear not to have considered these parameters, which impact on veterans in their post-war behaviour. Thus a narrow focus on the dubiously accurate levels of fat in the diet as the only factor in causing a link to an excessive fat ingestion after the war is considered inappropriate. It is particularly so in relation to this beneficial legislation, which requires reasonable certainty that a link does not exist before the claim can be rejected."

The Tribunal in that case considered (at page 24, paragraph 61) that on this basis;
"… because of the inherent inaccurate basis of the post-war fat consumption survey and the pre-war and wartime diet surveys all comparisons derived from these figures cannot aspire to any degree of mathematical precision. However, [as indicated above] it is on this evidence that the Tribunal must make its decision. Further, the current knowledge is limited as the processes surrounding fat preference and ingestion are both multifactorial and complex, which in turn limits the guidance available to the Tribunal as to which of the factors are the most significant amongst these many processes."

I am satisfied that the applicant consumed at least 70 grams per day of fat during his war service and continuously until the day of this hearing. I have come to this conclusion based on the tables provided by Ms Lewis' report outlining the fat content of the diets provided for servicemen such as the applicant in the arenas of war in which he served (at least 85 gm/day to perhaps 146 gm/day), the applicant's own oral and written evidence of a strong preference for bully beef during the war and a satisfaction of a preference for the consumption of cream, ice-cream and meat after discharge, and Dr English's conclusions at Exhibit 3 based on the applicant's evidence provided in the Departmental Dietary Questionnaire where she has concluded that the applicant's diet contained 66.6 gm/day of fat pre-war and 90.6 gm/day post-war.
There is no evidence that the applicant's desire for fatty foods has increased tangentially since leaving the services. It appears that after leaving the services, the applicant's diet took on a particular character, which included the consumption of fat to a particular level. He maintains that level even to this day. From this, I conclude that the applicant consumed at least 70 gm/day of fat from the time of his war service to the time he was diagnosed with prostate cancer in 1996, that is, for a period of at least 20 years before the diagnosis.
The only evidence of actual amounts of fat in the applicant's diet has been provided by Dr English based on the data provided by the applicant. Dr English has calculated the applicant's pre-war diet to include 66.6 gm/day of fat using the specifications of Instrument 191 as amended. She has also calculated that the applicant's post-war diet from the data provided has provided 90.6 gm/day fat.
These figures can only be relied on to the extent that the applicant was able to accurately recall specific details of his diet from a period at least sixty years ago to the present day. I accept her calculations but with an allowance for omissions by the applicant due to memory difficulties. Even with assistance in filling out the dietary forms, unless that person assisting was present at the time of consumption and retained a full and clear memory of the relevant events, such allowance must be made.
Dr English concluded that the increase in fat intake by the applicant between his pre and post war diets was 19.2% and stated in her letter of 24 May 2000 (Exhibit D) that "the increase in the intake of animal fat (19.2%) between the pre-war and post-war diets (minimum of 20 years post-war) does not meet the 40 percent increase as required under the (above) Instrument 191" (Exhibit D).
By my calculations, a 40% increase in intake would require an increase of approximately 26.6 gm/day to take the total from 66.6 gm/day to 93.2 gm/day. The difference between the 90.6 gm/day calculated by Dr English as the applicant's current fat intake and the required minimum increase to 93.2 gm/day is 2.6 gm/day, or less than an extra serve of butter a day. This difference of 2.6 gm/day could easily be accounted for in any allowance for error on the part of the applicant in providing details of his diet.
As stated in Re Wayne Walter Rowe and Repatriation Commission [2000] AATA 47 AAT, the legislation is beneficial legislation and SoPs should not be read too strictly.
On the evidence presented, I am satisfied that the necessary factor in paragraph 1(b) of the relevant SoP, namely "increasing animal fat consumption by at least 40%, and at least 70gm/day for at least 20 years before the clinical onset of malignant neoplasm of the prostrate", is satisfied in this matter.
It remains to be seen whether this factor can be causally connected to the applicant's war service.
Both parties relied on Deledio v Repatriation Commission (1997) 47 ALD 261. In that matter, his Honour Justice Heerey stated (at 275-276):
"Rather the question was whether it was disproved beyond reasonable doubt that there was a change for [the applicant], compared with his diet in civilian life, which resulted in the habits he adopted hereafter."
I do not find it unreasonable that, in this matter and on the evidence, the applicant's eating habits changed after his war service. Nor do I find it unreasonable on the evidence that change involved the applicant increasing his fat consumption by comparison with his pre-war levels. The applicant was introduced to a diet much higher in fat content whilst he was on operational service and continued to eat in the same manner post-discharge. I am therefore satisfied that a causal relationship exists between the applicant's war service and his post-war consumption of animal fat.
On this basis, I am not satisfied beyond reasonable doubt that the material before me does not raise a reasonable hypothesis connecting the applicant's condition, malignant neoplasm of the prostate, with his war service.
The decision under review will be set aside and in substitution therefore determine that the applicant's condition, malignant neoplasm of the prostate was war-caused.
I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed:         ................................................................................
Date/s of Hearing   13 November 1998
3 November 2000
Date of Decision                   2 May 2002
Counsel for the Applicant   Mr Hardie
First Counsel for the Respondent             Ms Ford
Second Counsel for the Respondent       Mr Derrington