Trenerry and Repatriation Commission

[2005] AATA 1249

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1249

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q1997/612

VETERANS' APPEALS  DIVISION		)
Re		BARBARA TRENERRY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President Don Muller

Date16 December 2005  

PlaceBrisbane

Decision The Tribunal affirms the decision to reject the claim for widows pension.

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

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

VETERANS’ AFFAIRS – death from prostate cancer as a result of a diet high in animal fat – post eligible service diet not connected with circumstances of service – decision affirmed

Veterans’ Entitlements Act 1986: ss 5C, 7, 8, 13, 120, 120A, 196B(14)

REASONS FOR DECISION

Deputy President Don Muller        

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

2.      She claims that her late husband, Norman Arthur Trenerry, died from the effects of a war-caused disease, namely, prostate cancer.

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

(a)Norman Trenerry died from the effects of prostate cancer.

(b)For many years prior to his death from prostate cancer, Mr. Trenerry 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. Trenerry’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 Australian Army.

(e)The food that he had become accustomed to eating during his years in the Army was higher in animal fat content than his pre-service diet.

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

4.      Mrs. Trenerry’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. Trenerry seeks review of that decision.

Legislative Framework

7.Pursuant to section 13(1)(a) of the VEA, where the death of a veteran was war-caused, the Commonwealth is, subject to the VEA, liable to pay pensions by way of compensation to the dependants of the veteran in accordance with the VEA.

8.Section 8(1)(b) of the VEA provides that the death of a veteran shall be taken to be war-caused, if the disease contracted by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran.

9.Section 7(1)(a) of the VEA provides that a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service.

10.The question of whether a death is war-caused within the meaning of section 8 of the VEA is to be decided by applying the standard of proof prescribed by section 120 of the VEA.

11.Section 120(1) provides that where a claim under Part II for a pension in respect of the death of a veteran relates to the operational service rendered by the veteran, the Commission shall determine that the death was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

12.Section 120(3) provides that the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the death was war-caused if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the person.

13.Section 120A(3) provides that for the purposes of section 120(3), a hypothesis connecting a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force a Statement of Principles (SoP) that upholds the hypothesis.

14.Subsection 196B(14)  of the VEA provides that a factor causing or contributing to a death is related to service rendered by a person if it arose out of, or was attributable to, that service.

Necessary Elements of Hypothesis

15.In the context of this review the elements of a hypothesis connecting prostate cancer contracted by the veteran with the circumstances of his war-service (operational service) are as follows:

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

(b)the veteran’s war service diet, provided to him by the Army, contained animal fat of (X + Y) grams per day on average;

(c)the increase in consumption of animal fat of Y grams per day whilst on eligible service was such that it could cause the veteran to increase his consumption of animal fat in his post-war service diet to a level, for a significant number of years, which could cause prostate cancer.

16.If the material placed before the Tribunal does raise a hypothesis containing the above elements, that hypothesis will only be reasonable if the hypothesis is consistent with, or fits the template of the relevant SoP established by the Repatriation Medical Authority.

17.In this case the relevant SoP at the date of this decision is Instrument No. 28 of 2005, “Malignant Neoplasm of the Prostate”.  Those parts of No. 28 of 2005 relevant to this review are:

“Factors that must be related to service

4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to the relevant service rendered by the person.

Factors

5.The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the prostate or death from malignant neoplasm of the prostate with the circumstances of a person’s relevant service is:

….

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

Other definitions

8.        For the purposes of this Statement of Principles:

“animal fat” means fat contained in or derived from:

(a)meat, other flesh or offal from animals (including birds but excluding seafood);

(b)       dairy products;  or

(c)       eggs from birds.”

Material Placed Before the Tribunal

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

(a)Norman Arthur Trenerry was born in Toowoomba, Queensland on 23 February 1919.

(b)After leaving school he became a truck driver.

(c)He enlisted in the Australian Army during World War II on 1 May 1940.

(d)He served as an Army transport driver.

(e)He rendered operational service:

28.11.40     to        3.3.41            in New Guinea

24.1.43       to        28.11.43         in New Guinea

13.7.45       to        16.1.46          in Bougainville

(f)He was discharged on 18 April 1946.

(g)He married the Applicant, Barbara Trenerry, on 29 April 1950.

(h)He was first treated for prostate cancer in March 1996.

(i)He died on 5 July 1996.  The cause of death was Prostate Carcinoma – four months.

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

19.     The evidence relating to Mr Trenerry’s diet was provided by:

(a)His widow, the Applicant, who gave evidence about his diet from 1950 onwards.

(b)His daughter, Nanette Irene Catchpole, who was able to give evidence about his diet from about 1960 onwards.

(c)The records relating to Australian average pre-war diets and records relating to service diets in New Guinea during World War II.

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

·There is no evidence as to what Mr. Trenerry’s animal fat intake was prior to his Army service.  According to the 1936-38 National Dietary Survey the average animal fat intake of adult Australian males was 122 gm per day.  This was modified to 126.0 gm per day to allow for a change in the definition of “animal fat” in the SoP.

·There is no evidence as to what Mr. Trenerry’s animal fat intake was during his operational service in New Guinea and Bougainville.  In the early stages of World War II the Army ration pack for New Guinea contained 113.9 gm of animal fat per day.  Between February 1944 to October 1945 the ration packs in New Guinea contained 132.5gm of animal fat per day.

·Following his discharge, Mr. Trenerry worked for some years for a Brisbane motor firm.  His job was to travel to Queensland country centres to collect “dead batteries”.  There is no evidence as to what his animal fat intake was for the years from 1946 to 1950.  Presumably he ate at cafes and roadhouses.

·In about 1950 his employer assisted him to start a transport company.  He initially transported houses, timber and did general cartage work.  He then obtained a contract to transport tyres from Brisbane to Sydney and vice versa.  He did this work for about 15 years until late 1966.

·His schedule almost invariably followed the following schedule:

Friday -          manually load Olympic tyres at Hendra

Sat/Sun -leave Brisbane at 2pm to arrive Sydney 11-12pm Sunday (two mandatory stops during this time)

Monday -      unload morning at Olympic;  load afternoon with Dunlop tyres

Tues/Wed -leave Sydney 4am Tues to arrive Brisbane late Tues night/early Wed morning;  unload at Dunlop Wed

Thursday -     day off at home

·Mrs. Trenerry occasionally travelled with Mr. Trenerry on his road trips.  She said that during the trips he would eat at roadside cafes.  The typical meal provided by these establishments in the 1950s and 1960s was either roast meat with roast vegetables and gravy, pies with chips and gravy or crumbed meat with chips and vegetables, usually washed down with a milk shake.

·He was a “big eater” and “liked his food”.

·He was a hard worker.  He did all of his own mechanical work.  He leased a workshop in Brisbane.  He used a manual block and tackle to remove engines and other parts of the trucks.  He removed and re-fitted tyres manually.  He attended to his own breakdowns on the road.  His wife would often have to make an overnight dash from Brisbane to some place on the highway with a spare part.

·He sold the trucking business in 1966 and worked as a sales representative for Fruehoff Trailers until 1971.

·He then worked for the Brisbane Market Trust until he retired in 1984.

·During the years from 1966 onwards he ate at home.  His usual diet was as follows:

For breakfast he either ate cereal with milk and an orange or banana with a cup of coffee and milk or he would have grilled cheese on toast.  Sometimes he would vary it by having bacon and eggs on hot scones with butter or “bubble and squeak”.

For lunch he would have a salad sandwich with cold meat or cheese and baked beans.

For dinner Mrs. Trenerry would normally prepare a roast and vegetables and gravy.  Alternatively they might have a steak, beef roast or lamb stew for dinner.

On the weekends Mr and Mrs. Trenerry spent a lot of time at the football, watching their son play and watching other matches.  They usually ate hot dogs, pies or hamburgers on those occasions.  They often stayed at the team club house for dinner on Sunday night, which would usually consist of a hamburger.

·He had put on some weight after he ceased driving the interstate transport truck.  In the mid 1970s the diet of Mr. and Mrs. Trenerry “changed a lot” because they became conscious of their weight.  They ate a lot more cereal, fruit and fish instead of meat.

·Shortly after his retirement he went to a weight reduction clinic at Toowong.  He lost a lot of weight but “never got slim”.

·In about 1986, Mrs. Trenerry joined Weight Watchers and put the whole family on a lower fat diet.

21.     The records relating to Mr. Trenerry’s weight show the following:

28.4.40 on enlistment 58.2kg (height 5’5” (165cms)

18.1.43 –      132lb (60.0kgm)

27.7.44 -       121lb (55.0kg) (loss of weight possibly due to malaria)

18.4.46 at discharge – no weight recorded

June 1971 at a pre-operation sigmoidoscopy – 60kgm

24.10.86 at a doctor’s appointment – 57kgm

22.     The material placed before the Tribunal:

(a)indicates nothing about Mr Trenerry’s diet prior to his enlistment other than the statistical fact that if he ate the then average Australian diet he would have consumed about 122 to 126 gms of animal fat per day;

(b)indicates nothing about Mr. Trenerry’s diet during his operational service in New Guinea and Bougainville other than the statistical fact that if he ate all of the ration packs supplied to him he would have consumed less animal fat per day (113.9gm) than he did prior to enlistment, for most of his time in New Guinea and slightly more animal fat per day (132.5gm) for a few months, than he did prior to enlistment;

(c)indicates nothing about his diet for the first five years after his World War II service other than he probably ate regularly at country cafes or road houses;

(d)indicates fairly indistinctly what his diet may have been during the fifteen years he was driving transport trucks between Brisbane and Sydney other than he probably ate at roadside cafes and road houses;

(e)indicates that he put on weight once he stopped the heavy work involved in the trucking business but then changed his diet to keep his weight down;

(f)indicates that his weight was a modest 60 kgm in 1971 and a more modest 57 kgm in 1986.

23.     There is no indication in the material placed before the Tribunal that Mr. Trenerry’s service in New Guinea and Bougainville had anything whatsoever to do with his diet, whatever it was, in Australia after his discharge from the Army.

24.     No hypothesis is raised which links the death of Mr. Trenerry with the particular circumstances of his eligible service.

25.     The decision to reject the Applicant’s claim for a widows pension is affirmed.

I certify that the 25 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  16 December 1005
Counsel for the Applicant          Mr. A. Harding

Solicitor for the Applicant           Gilshenan and Luton
Counsel for the Respondent       Mr. E. Ford
Solicitor for the Respondent       Mr. S. Francis