Tunks and Repatriation Commission
[2007] AATA 1416
•8 June 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1416
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/0732
VETERANS’ APPEALS DIVISION ) Re VERONICA TUNKS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Dr S Toh, Member
Date 8 June 2007
PlaceSydney
Decision The decision under review is AFFIRMED.
..................[sgd]......................
M D Allen
Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – whether the death of the Applicant’s husband was war-caused – veteran died as a result of cancer of the prostate – percentage increase of animal fat consumption purely speculative – Tribunal satisfied that the material does not raise a reasonable hypothesis connecting the veteran’s death with his operational service – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 – sections 5C, 6A, 120, 196B
CASE LAW
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock (2003) 37 AAR 383
Benjamin v Repatriation Commission (2001) 70 ALD 622
Repatriation Commission v Dunn [2006] FCA 1703
Bushell v Repatriation Commission (1992) 175 CLR 408
Repatriation Commission v Bey (1997) 79 FCR 364
Mancini v Director of Public Prosecutions [1942] AC 1
REASONS FOR DECISION
8 June 2007 Senior Member M D Allen
Dr S Toh, Member1. The Applicant is the widow of Kenneth Vardon TUNKS deceased who died on 16 May 2002 from cancer of the prostate. The Applicant claims that the deceased’s cancer was caused by or attributable to his war-service.
2. There is no dispute that the deceased was a veteran who had operational service as those terms are defined in sections 5C and 6A of the Veterans’ Entitlements Act 1986 respectively.
3. As the relevant events giving rise to the Applicant’s claim were alleged to have occurred whilst the deceased was on operational service, the standard of proof in this matter is that mandated by sub-sections 120(1) and (3) VEA.
4. Sub-sections 120(1) and (3) VEA provide that the death of a veteran claimed to be war-caused shall be accepted as being so caused unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal will be deemed to be so satisfied if, after a consideration of the whole of the material before it, the Tribunal is of the opinion that the said material does not raise a reasonable hypothesis connecting the death of the veteran with the circumstances of the service rendered by him. Pursuant to section 120A VEA, a hypothesis will not be a “reasonable hypothesis” unless it conforms to a so-called Statement of Principles (“SoP”) issued by the Repatriation Medical Authority.
5. Sub-section 120(6) VEA provides that neither party to this review bears any onus of proof.
6. The manner in which the Tribunal must approach its task where an SoP exists was set forth by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82. The so-called Deledio principles are now so well-known as to not require recapitulation here.
7. Notwithstanding the manner in which the Tribunal is required to approach its task as outlined above, the first step is to ascertain the specific kind of death suffered by the deceased: see Repatriation Commission v Hancock (2003) 37 AAR 383. In making this finding the standard of proof is that to the Tribunal’s “reasonable satisfaction” and in which the SoP regime established by s 196B VEA has no part to play: see Benjamin v Repatriation Commission (2001) 70 ALD 622.
8. In this matter there is no dispute that the “kind of death” suffered by the deceased was that he died as a result of cancer of the prostate. The clinical onset of the disease was in 1992. At the time of hearing by this Tribunal the relevant SoP was instrument No. 28 of 2005. The SoP in force at the time of the Respondent’s decision in this matter was instrument No. 84 of 1999 as amended by instrument No. 69 of 2002.
9. The hypothesis which the Applicant contends links the deceased’s war-service with his cancer of the prostate is that he was fed a low fat diet by his mother prior to enlistment in the Royal Australian Navy but during service in the RAN, acquired a liking for foods with a high animal fat content, and after discharge from the Navy insisted in maintaining a diet high in animal fats.
10. Paragraph 5(c) of Instrument No. 28 of 2005 provides as a factor that must as a minimum exist before a reasonable hypothesis has been raised connecting cancer of the prostate with operational service is:
Increasing animal fat consumption by at least 40% and to at least 50gm/a day, and maintaining these levels for at least 5 years within the 20-5 years before the clinical onset of malignant neoplasm of the prostate.
11. Animal fat is defined in paragraph 8 of the SoP as:
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.
12. Instrument No. 84 of 1999 as amended by Instrument No. 69 of 2002 defines animal fat in the same terms.
13. To our mind, Instrument No. 28 of 2005 is more favourable to the case advanced by the Applicant, in that the daily percentage of animal fat is less and the percentage over which the consumption is required is less, namely five years within 25 as opposed to “at least 20 years”. We therefore propose to consider the Applicant’s claim by reference to Instrument No. 28 of 2005 and find that if the Applicant cannot succeed pursuant to this SoP she could not succeed pursuant to the earlier Instrument.
14. As pointed out in Repatriation Commission v Hill (2003) 69 ALD 581 at paragraph 57, a hypothesis relied on by an Applicant to support a pension claim must be supported by material pointing to each element that the SoP makes essential for the hypothesis to be regarded as reasonable.
15. The material which supports the hypothesis of the connection with service must exist. In Repatriation Commission v Dunn [2006] FCA 1703, Nicholson J at paragraph 46 said:
“It is necessary to return to the precise words of 5(c) of the SoP. The opening words state the factors which must as a minimum exist before it can be said a reasonable hypothesis has been raised connecting the malignant prostate with the circumstances of the person’s death. The three circumstances in (c) have been set out above. The third factor is the duration of the consumption for the 20 year period preceding clinical onset. Of all three factors it was necessary in accordance with clause 4 of the SoP that they be related to relevant service. Step 3 in Deledio at 97 makes this apparent when it states:
The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service…..
That is the hypothesis could not be raised as reasonable in accordance with the SoP unless there was some material pointing between the connection between the 20 year post-operational service, consumption being connected with the relevant service. As was the case in Byrnes at 569, the hypothesis is one of connection of the veteran’s condition with the circumstances of his service. If there is an assumed fact it cannot be the fact to which the hypothesis must be addressed, ie; the fact of connection.”
16. The Applicant did not know the deceased prior to his enlisting in the RAN. Although the deceased’s brother and the Applicant, based on what she was told, and a boyhood friend of the deceased, have given statements as to the deceased being unable to tolerate greasy or fatty foods and therefore being fed a low-fat diet by his mother prior to enlistment, there is no reliable evidence whatsoever as to the deceased’s actual dietary intake of animal fat prior to service.
17. As Dr English, nutritional consultant, pointed out, without access to a completed dietary questionnaire, for the deceased’s pre-service period, any attempt to calculate the deceased’s average annual fat intake is speculative.
18. The 1938 report of the Advisory Council on Nutrition, being a national survey of the Australian people in the years 1936-1938, gave as the average adult intake of animal fat 126 grams per day. At the time of his enlistment in the RAN the deceased’s body mass index of 18.7 just fell within the healthy weight range which was 18.5 to 25.0. We can only infer from this material that the deceased’s daily intake of animal fat was around or possibly slightly below the national average.
19. There are no facts upon which to base an estimation of average daily fat intake whilst the deceased was serving in the RAN. Quite obviously, what he ate and when, depended upon the exigencies of active service aboard one of the HMA ships. We have no doubt, however, that at times the deceased was served greasy and fatty foods.
20. As an example of the type of meals offered aboard the larger naval vessels, exhibit A7 is an extract from a history of HMAS Perth on which the deceased served. The extract refers to a breakfast of pork sausages, fried eggs and chip potatoes. This extract, however, does not mean that this was the average daily diet for sailors for HMAS Perth. And indeed the extract refers to what was apparently regarded as a special occasion.
21. In a statement to the Veterans’ Review Board, the deceased’s son-in-law said that the deceased told him that aboard ship they had “rolly-pollys” and that there was lard fat and baking in the Navy.
22. Most of all, the Applicant’s evidence was that the deceased post war insisted on having the fatty food he had come to enjoy whilst in the Navy. She went on to state that the deceased had fried eggs and sausages for breakfast, toast with plenty of butter, that he liked the fat left on chops and steak, the outside slice on roast lamb, and gravy in the dish from the baked meat. He wanted apple pie or baked custard with cream or anything with chocolate or cheese in or on it. She further added that the deceased stated he had acquired a taste for fatty food whilst in the Navy. In oral evidence the Applicant stated “he liked what he had been denied as a child”.
23. Based on the Applicant’s estimates of what the deceased ate post-service, as given by her to Dr English, the deceased would have consumed 187 grams of fat per day.
24. Considerable doubt attaches as to the Applicant’s estimates of what the deceased ate post-war. Based on the original figures supplied by the Applicant, Dr English calculated the deceased’s daily energy intake. Dr English calculated that the deceased’s total energy intake was 17358kj, but calculated the deceased’s energy requirements were in the range of 11361kg to 13885kj. On these figures, the deceased would have had a weekly weight gain of 0.7kg. This weekly weight gain would increase of up to some 35kg per year over the post-service period. The deceased had an average weight of 70kg and as Dr English stated in her report, it was physiologically impossible for the deceased to gain an amount of up to 35kg in body weight each year based his post-service diet as described by the Applicant.
25. In a report to the Applicant’s solicitors, Ms Georgeou, Dietician stated:
I am in agreement with Ms Ruth English tools and report of analysing Mr Kenneth Tunks pre-service, operational service, and post-service food intake and eating habits and in particular, Mr Kenneth’s (sic) fat intake during these times. Ms Ruth English did find that the Diet and Food Frequency Questionnaire completed by Mrs Tunks to demonstrate over-reporting of food intake due to the cross analysis of the possibility of physiologically being able to consume the food and calories reported and the affect on the body, ie 246g animal fat per day, which would equate to an energy intake of 17,358kj per day which means Mr Tunks should have been gaining 35kg of body weight every year on his post-heightened service diet.
26. The Applicant explained away the inconsistency by stating in her Statement of Facts and Contentions at paragraph 40 that the inconsistency was that the Applicant, whilst incorrectly recalling the total amount of food her husband consumed did provide a reasonably accurate indication of the relative proportions eaten by the deceased. If this were so, then based on Dr English’s assessment of a maximum energy intake of 1,3885kj a day, the animal fat intake would be 187 grams.
27. Of the above calculations, Dr English stated:
I strongly disagree with the new figures provided by the Applicant for the following reasons:
·The Applicant has energy-adjusted the animal fat intake of Mr Tunks in the post-service period to meet the maximum of my estimate of the veteran’s energy requirements range (refer RE’s Nutrition Report of 24.2.05 p13). Modification of animal fat intake on the grounds of specific energy intake in kilojoules to achieve the validation to meet the criteria of a specific Statement of Principles is scientifically invalid and unacceptable. Such an approach impinges on the validity of the criteria detailed in the SoP concerning malignant neoplasm of the prostate. Though there has been a crude energy adjustment of 80% for animal fat foods and non-animal fat foods, solely based on the balancing of analysed energy intake with estimated energy requirement, such an adjustment cannot allow for the varying fact in energy values of the individual vegetable-based foods contributing to the energy intake of the veteran’s dietary return for the post-service period.
·Such data manipulation of adjusting dietary intake on the basis of energy intake, has been critically described as:
“The bumpy road of original data smoothed with the glossy finish of adjusted data”, and “inappropriate”. The statistical validity of energy adjustment has been clearly defined as requiring that the composition of the diet is preserved (for example, the reported percentage of fat from individual animal fat foods and the energy from individual vegetable-based foods are attained). These measures provide a biological basis for adjusting the absolute animal fat intake. The most critical issue is whether the adjustment can preserve the composition of individual’s diet. There is no evidence that this requirement has been met from the new figures provided by the Applicant.
I strongly disagree with the use of energy-adjusted intakes of animal fat to meet the criteria of the Statement of Principles concerning malignant neoplasm of the prostate. It is inconsistent with the explicit wording of SoP instrument No. 28 of 2005 and the nutrition methodology and evidence in the reference material on which the original SoP of 1996 was developed.
Adjusted data does not enable one to monitor changes in the actual intake and does not identify what specific intake levels would confer increased risks on an individual for diet disease relationships in general.”
28. The Applicant has conceded in her Statement of Facts and Contentions that she may have been inaccurate in her recall of the total amount of food ingested by the deceased. If this recall is wrong, then it is equally likely that her recall of the relative proportions of the different foods consumed is also wrong.
29. Ms Georgeou postulated that malabsorption due to frequent loose bowel motions could explain why the deceased did not gain weight, whereas on the diet history provided he should have been gaining weight at the rate of 35kg per annum.
30. A report was obtained by both parties from Professor Duggan, Gastroenterologist, to address the issues raised by Ms Georgeou. At page 3 of his report, Professor Duggan stated:
In a normal gut, ie one of normal or adequate function, diarrhoea such as apparently present in Mr Tunks, does not affect fat absorption. The reason for this is that fat is absorbed in the upper small bowel, ie in the first few metres of an approximate six meter long small bowel. The remaining several metres of small bowel acts in a reserve capacity. This situation is analogous to the normal heart beating about seventy times per minute but with strenuous activity it can double its rate and increase the volume of blood pumped by nearly six fold. The lower bowel; the colon/rectum, the part most associated with diarrhoea, plays no role in fat absorption. Its main function is to absorb water and salt and to store temporarily its contents until evacuation.
In other words, diarrhoea is not a feasible cause of fat malabsorption.
Professor Duggan then added:
I note that Ms Georgeou has raised the issue of increased energy intake by the late Mr Tunks, such as riding a bike to work and climbing up and down ladders in his work as a telephone technician. Whilst I accept this may have had a role in burning up his excess caloric intake, I am not persuaded that it played a major role. As for the question of malabsorption I have considered this above, and the two issues are largely self-contradictory. If he were malabsorbing some of his food intake, then it is extremely unlikely that he would feel well enough to pursue the active lifestyle suggested. Overall then, I am not persuaded by the arguments proposed by Miss Georgia of 18 July 2005 and 30 January 2006.
31. Professor Duggan was also asked to comment on the reports of Dr English. He stated:
I have studied these reports and find myself in broad agreement. The high claimed fat intake can only have had one of two explanations. Either there was a substantial failure to absorb some of the fat or the member would, over the years, have gained large amounts of weight.
In case one fecal loss of say 100g of the 200g of fat daily to bring the caloric intake down would entail passage of large amounts of foul smelling sloppy stools which would be expected to bring the problem to some form of attention over and beyond the broad statement of low grade diarrhoea over the years. In case two, as noted, major weight gain would have ensued.
Professor Duggan concluded his report by opining that in the deceased’s case the claimed intake of 246 grams of fat a day was not credible.
32. Pursuant to paragraph 196B(14)(f) VEA, a factor causing or contributing to a disease is related to service if the factor would not have occurred (i) but for the rendering of that service by the person; or (ii) but for changes in the person’s environment consequent upon his having rendered that service. In this matter, the evidence has raised the hypothetical fact that but for the deceased’s Naval service he would not have begun to prefer a diet high in animal fats.
33. That being said, there are no facts present which address the hypothesis of an increase in animal fats by at least 40%.
34. The opinion of Ms Georgiou as to the rate of animal fat consumption is not set out in any detail and in her reports and she accepts the methodology of Dr English, but her explanation of malabsorption has been refuted by Professor Duggan. Her other calculations have been shown by Dr English to be speculative.
35. No evidence exists as to the amount of animal fat the deceased consumed in his pre-war diet. The best estimation can only be that it was some figure around or slightly below the national average.
36. Post-service, we can assume that the deceased increased his annual fat consumption but as pointed out in the reports of Dr English and Professor Duggan, the actual amount of increase is pure speculation.
37. As was pointed out in Bushell v Repatriation Commission (1992) 175 CLR 408 at page 415, unless there was material which raises a reasonable hypothesis there is nothing upon which the Repatriation Commission (and hence this Tribunal) can find that the incapacity or death was war-caused.
38. In a passage which has been overlooked in many judgments, the majority of the High Court in Bushell, supra, at page 415, drew an analogy with the “defence” of provocation in a murder trial. They proceeded to quote with approval a passage from Mancini v Director of Public Prosecutions [1942] AC 1 at page 12, namely:
“It is not the duty of the judge to invite the jury to speculate as to provocative incidents, of which there is no evidence and which cannot be reasonably inferred from the evidence. The duty of the jury to give the accused the benefit of the doubt is a duty which they should discharge having regard to the material before them, for it is on the evidence, and the evidence alone, that the prisoner is being tried.”
39. Nicholson J in Dunn v Repatriation Commission, supra, at paragraph 46, pointed out:
“If there is an assumed fact it cannot be the fact to which the hypothesis must be addressed; that is the fact of the connection.”
40. In Repatriation Commission v Bey (1997) 79 FCR 364, the Court said:
“While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must…….. be pointed to or supported, and not merely left open as a possibility, by the material before the decision maker.”
And at page 373:
“Whether material raises a ‘reasonable hypothesis’ for the purposes of s 120(3) is a question of fact, for it involves no more than a determination whether a hypothesis connection is reasonable: Repatriation Commission v Owens (1996) 70 ALJR 904.”
41. In this matter there is no fact of connection sufficient to raise a reasonable hypothesis as the percentage increase of animal fat consumption by the deceased is purely speculative. As the factor which the Applicant contends raises the reasonable hypothesis connecting the death of the deceased with operational service cannot be said to exist, there is no hypothesis which fits within the template provided by the SoP, and hence no reasonable hypothesis exists for the purposes of sub-section 120(3) VEA.
42. Even if we are wrong regarding the existence of a hypothesis, we find that the Applicant’s claim fails at the fourth Deledio step in any event.
43. There is no evidence as to the amount of animal fat ingested by the deceased pre his enlistment in the RAN. Post-service the amount of animal fat stated by the Applicant to be part of the deceased’s diet has been shown to be wrong. If she is wrong on this detail, her estimations of the portions taken by the deceased are also questionable. The calculations by Ms Georgeou are scientifically invalid. The result is there is no real evidence as to the amount of animal fat ingested by the deceased post-war.
44. An essential element necessary to be present in order for the hypothesis linking war service with death to conform to the SoP is that the deceased increased his animal fat consumption by at least 40%. In this matter, as stated, there is no evidence as to pre-war consumption and no reliable evidence as to the amount of post-war consumption. In these circumstances, we are satisfied beyond reasonable doubt that the factual foundation upon which the hypothesis can operate does not exist.
45. As no reasonable hypothesis connecting the death of the deceased with the service exists, we are deemed to be satisfied beyond reasonable doubt that the death of the deceased was not war-caused, and thus the decision under review is affirmed.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr S Toh, Member
Signed:
[sgd] Mwela Kapapa ...............................................................................
Associate
Date/s of Hearing 10 May 2007
Date of Decision 8 June 2007
Counsel for the Applicant Mr C Colborne
Solicitor for the Applicant Wyatt AttorneysRepresentative for the Respondent Department of Veterans’ Affairs, Advocacy Section
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