Tipper and Repatriation Commission

[2005] AATA 1181

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1181

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/943

VETERANS APPEALS    DIVISION		)
Re		MAISIE TIPPER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Senior Member Robin Hunt  

Member Dr John Campbell

Date1 December 2005

PlaceSydney

Decision The decision under review is affirmed.

..............................................

Ms R Hunt        
  Presiding Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – Claim by widow – Cause of death – Death certified due to prostate cancer – Consideration of possible relationship to diet in the navy – Veteran’s prostate cancer not caused by any factor set out in statement of principles – Death not war-caused – Decision affirmed.

LEGISLATION

Veterans’ Entitlements Act 1986 s120

CASES

Fitzgerald v Penn (1954) 91 CLR 268

R v Malcherek [1981] 1 WLR 690

Chappel v Hart (1998) 195 CLR 232

Spencer v Repatriation Commission (2002) 74 ALD 362

Repatriation Commission v Hancock (2003) 37 AAR 383

Brown and Repatriation Commission [2003] AATA 1010

REASONS FOR DECISION

1 December 2005 Senior Member Robin Hunt 
Member Dr John Campbell           

INTRODUCTION

1.      Mrs Maisie Tipper, the applicant, is the widow of a veteran, Mr Percy Alexander Tipper. Mr Tipper served in the Australian navy during World War II. The certificate of death issued in 2002 stated that the cause of Mr Tipper’s death was prostate cancer. Mrs Tipper sought review of the decision that his death was not attributable to his war service. We have affirmed the decision that Mr Tipper’s death was not war-caused for the reasons set out below.

background

2.      Mrs Tipper married Mr Tipper in 1944 and they were together until Mr Tipper died on 12 February 2002. Mrs Tipper saw her husband suffer considerable pain over the last years of his life. After he was diagnosed with prostate cancer, he continued to deteriorate and became confined to a wheelchair. Mrs Tipper told the tribunal she believes that her husband’s death was related to his war service, and especially the trauma he was exposed to in the gunnery of HMAS Canberra, which sank with the loss of many lives.

3.      We heard the oral evidence of Mrs Tipper and one of her four sons, Mr Ray Tipper. As well, we took note of the historical, dietary and medical reports before us. We concluded that, although Mr Tipper was a veteran who gave considerable war service, his death was not war-caused. We did not find evidence to support a theory that Mr Tipper’s death was in any way related to his service. This means that Mrs Tipper’s claim must fail.

ISSUES

4.      The issues for the tribunal revolve around the cause of Mr Tipper’s death. Mrs Tipper and her son suspect that Mr Tipper’s prostate cancer may in some way be related to his diet in the navy or to the traumatic experiences he was exposed to. As there is no dispute as to death resulting from prostate cancer, the first issue is whether it is a reasonable hypothesis that Mr Tipper’s cancer was caused or contributed to by his operational service in World War II.

5.      For this hypothesis to be reasonable, Mr Tipper’s fatal condition must satisfy the factors set out in the relevant Statement of Principle (SoP) for Malignant Neoplasm of the Prostate. Initially, the SoP before the tribunal was Instrument Number 84 of 1999 as amended by Instrument Number 69 of 2002. The 2002 amendment simply set out a definition of “animal fat”. Broadly, it means meat, dairy products and eggs. The definition in Instrument Number 28 of 2005 is similar.

6.      Before the tribunal concluded its deliberations, a new instrument came into force, that is, Instrument 28 of 2005. Under factor 4 of both instruments, at least one of the factors set out in clause 5 must be related to the relevant service rendered by the person. Factor 5 of both the 1999 SoP and the 2005 SoP are therefore the starting point.

7.      Briefly, Factor 5 in both the 1999 and 2005 SoPs is that, for a reasonable hypothesis connecting operational service to the condition causing death, as a minimum, the circumstances of service must have involved inhalation or absorption of herbicide, being on land in Vietnam, increasing animal fat consumption or inability to obtain appropriate clinical management of the malignancy. Instruments 28 and 29 of 2005 revoke 84 and 85 of 1999, as amended by 69 and 70 of 2002. The tribunal nevertheless examined the claim in terms of both the current instrument and the instrument that previously regulated the claim at the date of application.

8.      Factor 5(c) of the 1999 instrument required 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.

9.      Factor 5(c) of the current instrument required increasing animal fat consumption by at least 40% and to at least 50gm/day for at least 5 years within 25 years before the clinical onset of malignant neoplasm of the prostate.

ANALYSIS AND FINDINGS

10.     As Mr Tipper had “operational service”, as defined in s6 (A) of the Veterans Entitlements Act 1986 (the Act), the standard of proof in this matter is that prescribed by ss 120(1) and (3) of the Act. That is, we must find that his death was war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. If we decide the evidence does not raise a reasonable hypothesis connecting Mr Tipper’s death with his service, Mrs Tipper’s claim cannot succeed. Whether the hypothesis is reasonable is governed by the applicable SoP by virtue of s120A.

11.     At the date of our decision, SoP 28 of 2005 applies. Factor 4 of this instrument provides that at least one of the factors set out in clause 5 must be related to the relevant service rendered by the person. Factor 5 provides the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting the malignant neoplasm with the circumstances of service. SoP 84 of 1999 contains similar provisions and we have considered these as well.

Mrs Tipper’s evidence

12.     Mrs Tipper sought a pension on the basis that her late husband’s death was war-caused. Before dealing with whether the death was war-caused, the tribunal must determine, on the balance of probabilities, the “kind of death” suffered by MrTipper. See Repatriation Commission v Hancock (2003) 37 AAR 383 and the tribunal case, Brown and Repatriation Commission [2003] AATA 1010. In determining the “kind of death” the Tribunal is, as Senior Member Allen and Member Thorpe explained in Brown, seeking the real or operative cause of death as opposed to the final stage of the process of dying. Also see the basis for this approach according to the High Court in Fitzgerald v Penn (1954) 91 CLR 268 at 276. See also Chappel v Hart (1998) 195 CLR 232 at 243 per Gaudron J, and compare R v Malcherek, [1981] 1 WLR 690, especially at pp 695, 696.

13.     Mrs Tipper told the tribunal that her husband never discussed his war experiences but she knew he had been on the HMAS Canberra when it sank and he had seen the bodies of his shipmates around him. He was lucky to have escaped, especially as he was in the gunnery. She said he had nightmares about the war and she felt his traumatic experiences were somehow responsible for his death.

Mr Tipper’s evidence and Medical Record

14.     Mr Raymond Tipper, her son, also told the Tribunal that his father had not said much about the war. He wondered if working below decks might have exposed his father to asbestos and whether this had contributed to his death. They both described Mr Tipper’s active working life until retirement at age 65 and his suffering over the years before his death. The prostate cancer he suffered caused him pain needing morphine for relief and he was confined to a wheelchair.

15.     Mr Ray Tipper also told the tribunal that his father had heart problems and underwent bypass surgery. He had suffered a mild stroke as well, from which he had recovered. He had been diagnosed with prostate cancer in 1992. Mr Ray Tipper wondered if the death certificate could have been wrong and whether his father might have died of a heart attack but presented no evidence that raised doubt about the certified cause of death. Mrs Tipper and her son did not dispute that Mr Tipper suffered from severe prostate cancer. As well as the certificate of death, we had before us clinical notes of the GP, Dr Bates, and the Royal North Shore Hospital. Taking all this evidence into account, especially the death certificate, we have no doubt that Mr Tipper had prostate cancer and, next, on balance, we find this malignant cancer was the operative cause of his death.

Link to War Service

16.     As we have determined that the prostate cancer was the cause of Mr Tipper’s death, the next key issue is whether there was a link between war service and the prostate condition. Instrument 28 of 2005 must form part of our consideration. At this stage, we are considering whether there is a reasonable hypothesis connecting the death to operational service. Factor 5 of the SoP sets out minimum factors that must exist before a reasonable hypothesis can be raised connecting malignant neoplasm of the prostate to death with operational service. If the material before us does not point to a hypothesis raised under SoP 28 of 2005, we shall consider the claim against Instrument No 84 of 1999, as amended by Instrument Number 69 of 2002.

17. Of the four possible circumstances set out under factor 5, only the fatty diet possibility can apply to Mr Tipper. Mrs Tipper and her son did not suggest there could be any link to the other possibilities in the SoP factor 5 terms. Mrs Tipper hoped to establish her claim by reference to the amount of animal fat consumed as set out in paragraph 5(c). While Mrs Tipper and her son expressed the view that Mr Tipper might have been adversely affected by the stress and trauma of war events and suffered the malignancy for reasons not covered in the SoP, this cannot be overcome due to s120A and the existence of SoPs governing the condition. There is only one hypothesis before the Tribunal, that is, Mr Tipper’s death by prostate cancer may have been related to his war service. Any suggestion that Mr Tipper’s death was brought about by any other cause amounts only to a vague suspicion which is not connected to any material of any kind before us. Accordingly, we must discard this as a reasonable hypothesis.

18.     The full version of factor 5(c) in the 2005 instrument reads that the circumstances of the veteran’s relevant service is “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”. Dr English has found that Mr Tipper did have a fatty diet per day level for factor 5(c) as set out below. However, no relationship to service is indicated in our view and will be dealt with further below.

19.     For the 1999 instrument, factor 5(c) requires “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”. The bulk of the evidence and reports before the tribunal suggest Mr Tipper consumed excessive amounts of fat over the 20 or more years leading up to his death. He therefore meets the fatty diet per day part of factor 5(c) of the 1999 instrument. Again, we must also deal with the material before us to see if a possible link with operational service is raised.

20.     Mrs Tipper did not marry her husband until 1944 but had known him through his high school years. Mrs Tipper gave the tribunal some information about Mr Tipper’s eating habits. In addition, the Commission provided some details of the types of food that RAN service personnel consumed. Mr Brendan O’Keefe, a consulting historian, provided a report and Mr Philip Keech, a dietician, also gave a written report. As well, Dr Dianne Volker, a dietician, provided a report for Mrs Tipper. These reports made reference, among other matters, to the expertise of Dr Ruth English, a nutrition consultant. Dr English provided reports subsequently. The information before us suggests that Mr Tipper may have eaten a slightly less fatty diet in the RAN than in his pre-war civilian life.

Mr Keech - Dietician

21.     Mr Philip Keech, a dietician, who furnished a written report and some RAN records about the wartime diet, interviewed Mrs Tipper before writing his report. Mr Keech noted there was no recorded weight change for Mr Tipper over his war service period. Some further details of his diet gleaned from Mrs Tipper and Mr Keech’s report are set out below.

22.     With his letter of 20 October 2004, Mr Keech furnished some photocopied documents about the types of food that navy personnel consumed. Mr Keech interviewed Mrs Tipper and furnished a report in February 2005 based on what he recorded at the interview. According to Mr Keech, Mrs Tipper recalled that her husband was a meat eater, favouring lamb’s fry and bacon, braised steak and sausages. He liked “ordinary meals”. Mr Keech also reported his discussion with Mr Tipper’s brother. His brother, Mr Russell Tipper, could not remember detail of meals he and his brother ate when they were young.

23.     Mr Keech concluded that Mr Tipper’s pre-war diet was no less than the national civilian diet at 122 grams per day and probably more, around 180 grams per day. Average daily consumption in war service was about 170 grams per day but varied. This suggests that during his war service, Mr Tipper ate a somewhat less fatty diet than previously.  Mr Keech made his final assessment after consideration of Mr Tipper’s diet before, during and after the war, and a particularly detailed account of his post-war diet taken from Mrs Tipper. Mr Keech formed the opinion that Mr Tipper’s diet was essentially the same throughout.

Dr Volker

24.     Dr Dianne Volker interviewed Mrs Tipper over the telephone and reported in writing on 16 November 2004. She observed that Mrs Tipper could not recall her husband’s pre-war diet so Dr Volker used mean animal fat values for pre-war calculations. Dr Volker concluded that the information she set out “reinforces the evidence relating to SoP, clause 5(c), namely that Percy Tipper’s prostatic malignancy was not related to his war service.”

Dr English

25.     Dr English is a nutrition consultant, who provided two reports. Dr English reviewed the other reports already before the tribunal and commented on the information in each of them. In her report dated 2 September 2005, Dr English wrote that it was difficult to provide an average figure for the animal fat intake of naval servicemen during WWII. The average intake was affected by matters such as where the officer was stationed. Dr English said she had read the reports of the three other experts mentioned above and she commented at length on each of them, pointing out deficiencies. She noted that, although information is available “on the anecdotal memory recall of their WW2 diet by some veterans, it is essential to base the estimate of the past intake of animal fat in grams per day on official Government ration scales and national survey data, which provide the detail of daily availability of specific foods and the quantities provided to estimate animal fat intake”.

26.     After the hearing, the Commission obtained a further report from Dr English which she completed on 27 October 2005. Dr English contacted Mrs Tipper to assist her in estimating Mr Tipper’s animal fat intake. She prepared a further report based on answers Mrs Tipper provided to a questionnaire and subsequent telephone conversations. Correspondence and the questionnaire sent by Dr English to Mrs Tipper are attached to the report along with other information.

27.     In her final report, Dr English concluded that Mr Tipper’s intake of animal fat during the pre-service period, based on average adult male intake, was 126g per day. During service, Dr English concluded that Mr Tipper reduced his intake to 112.1g per day, based on his individual postings and their duration and the animal fat level in specific ration scales associated with those postings. Post-service, she concluded that his animal fat content increased. Dr English calculated that the animal fat content of his diet from 1967 to 1972 was 165.8g per day, an increase of 31.6% compared to his pre-service diet. It was difficult to relate this to service as there was a decrease of 11% in his animal fat intake during service compared to his pre-service intake. This was consistent with limited availability of meat and milk during the war.  Dr English noted that Mr Tipper’s post service diet met the criterion of an intake of at least 50gm/day.

Findings

28.     We have considered all of the reports before us and the evidence and submissions of Mrs Tipper and her son. It is clear that Mr Tipper’s post-war diet, does, in part, meet factor 5(c) of Instrument 28 of 2005 and similarly, in part, meets factor 5(c) of instrument 84 of 1999 as amended. However, his diet during service was less inclusive of animal fat than at any other time of his life. Factor 4 of both the 1999 and 2005 instruments makes it plain that at least one of the factors set out in clause 5 of the SoPs must be related to war service.

29.     Both instruments set out under factor 5 the minimum requirements that must exist, including the increasing consumption of animal, before a reasonable hypothesis has been raised. Mr Tipper’s diet during war-time decreased as to animal fat content. The material before the tribunal points to his animal fat consumption increasing by 31.6% and in excess of 50gm per day after the war. This material does not point to any element of factor 5 in either of the SoPs (Instruments 28 of 2005 and 84 of 1999). This means that a hypothesis linking Mr Tipper’s operational service to his diet and then to his death is not reasonable. As we have determined that there is no reasonable hypothesis before us, we cannot find in favour of the applicant.

DECISION

30.     The decision under review is affirmed.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of  Senior Member Robin Hunt

Signed:         ....................................................................................
Zoe McDonald
Associate

Dates of Hearing: 26 May 2005 and 3 August 2005       
Date of Decision: 1 December 2005         
Solicitor for the Applicant: Self represented
Solicitor for the Respondent: Department of Veterans’ Affairs