Wills and Repatriation Commission - [2010] AATA 112

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 112

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2009/0423

VETERANS' APPEALS DIVISION )
ReSheila WILLS

Applicant

And Repatriation Commission

Respondent

DECISION

TribunalMr RP Handley, Deputy President
Dr MEC Thorpe, Member

Date 15 February 2010

PlaceSydney
DecisionThe decision under review is affirmed.
.....................[sgd]....................
Mr RP Handley
Deputy President

CATCHWORDS

VETERANS’ AFFAIRS – war widow’s pension - whether veteran’s death was war-caused – malignant carcinoma of the prostate - increased animal fat consumption post-service - Deledio test - causal link too tenuous - Tribunal satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the veteran's death is war-caused - decision under review affirmed

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RELEVANT ACT

Veterans’ Entitlements Act 1986

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CITATIONS

Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144

Burns and Repatriation Commission [2008] AATA 1078

Mason v Repatriation Commission [2000] FCA 1409

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OTHER AUTHORITIES

Statement of Principles Concerning Malignant Neoplasm of the Prostate, Instrument No 28 of 2005 dated 19 September 2005

Statement of Principles Concerning Malignant Neoplasm of the Prostate, Instrument No 29 of 2005 dated 19 September 2005

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REASONS FOR DECISION

15 February 2010

Mr RP Handley, Deputy President

Dr MEC Thorpe, Member

The issue for the Tribunal is whether the death of Mr Vincent Wills due to malignant carcinoma of the prostate was war-caused. If it was, Mrs Sheila Wills is eligible for a war widow’s pension under the Veterans’ Entitlements Act 1986 (the Act).

Background

Mr Wills died in February 1988, aged 67. He served part-time in the Australian Army from 1 October 1939 to 27 March 1942. He served full-time in the Royal Australian Air Force (RAAF) from 28 March 1942 to 19 October 1945, which period constitutes eligible war service, and, because he served outside Australia for this period, it also constitutes operational service. He later served full-time in the RAAF from 1 November 1954 to 20 April 1975, of which the period 7 December 1972 to 20 April 1975 constitutes eligible defence service.
Mr and Mrs Wills were married in 1946 and had four children. On 11 April 2008, Mrs Wills, through her attorney (and daughter) Frances Marie Wilson, applied for a war widow’s pension on the ground that her husband’s death was war-caused. Her claim was refused by the Repatriation Commission on 21 July 2008, a decision that was affirmed on appeal to the Veterans’ Review Board (VRB) on 19 December 2008. On 2 February 2009, Mrs Wills sought a review by the Tribunal.

issues

The evidence establishes that Mr Wills’ death was due to malignant carcinoma of the prostate. Mrs Wills claims that her husband’s death was war-caused. She contends that Mr Wills’ increased consumption of meat during service resulted in his increased consumption of animal fat which led to the later development of prostate cancer and ultimately to his death.
The approach the Tribunal must adopt in this matter with respect to Mr Wills’ operational service is that set out by the Federal Court in Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144 (Deledio). In terms of the first step prescribed by the Court, the Tribunal, having considered the material before it, is satisfied that the material points to a hypothesis connecting the condition with the circumstances of Mr Wills’ service. The second step is to ascertain whether there is a relevant Statement of Principles (SoP). There is no dispute that the relevant SoP is Instrument No 28 of 2005 concerning malignant neoplasm of the prostate, dated 19 September 2005 (SoP No 28).
The third step requires the Tribunal to form an opinion as to whether the hypothesis is a reasonable one, consistent with the template in the relevant SoP. In this instance, paragraph 5 of the relevant SoP states the factors 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. The factor relevant in Mr Wills’ case, paragraph 5(c), is as follows:
(c) increasing animal fat consumption by at least 40% and to at least 50 gm/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; …

“Animal fat” is defined in paragraph 8 as follows:
“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;
…
If the Tribunal forms the opinion that the hypothesis raised is a reasonable one, it must then (at step four) consider, pursuant to s 120(1) of the Act, whether it is satisfied beyond reasonable doubt that “there is no sufficient ground” for making a determination that Mr Wills’ death was war-caused.
With respect to Mr Wills’ eligible defence service, the relevant SoP is Instrument No 29 of 2005 concerning malignant neoplasm of the prostate, dated 19 September 2005 (SoP No 29). Paragraph 5 of this SoP states the factors that must 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. The factor relevant in Mr Wills’ case is paragraph 5(a) which, except for the period maintained, is in identical terms to paragraph 5(c) of SoP No 28:
(a) increasing animal fat consumption by at least 40% and to at least 50gm/day, and maintaining these levels for at least ten years within the twenty-five years before the clinical onset of malignant neoplasm of the prostate;
…

The standard of proof to be applied is that of reasonable satisfaction.

Clearly, in Mr Wills’ case, if his operational service does not satisfy the required test, then nor can his eligible defence service.

Mrs Wilson’s Evidence

Mrs Wills, who is aged 86, did not attend the hearing. However, her daughter, Mrs Wilson, who was born in 1949, provided a statement dated 12 January 2010 and gave evidence at the hearing. Mrs Wilson is a retired registered nurse who is currently her mother’s carer. She said her parents first met during World War 2, while her father was training in Narrabri prior to his going overseas on active service. Thus, neither Mrs Wilson nor her mother has first-hand knowledge of Mr Wills’ diet before the War.
Mr Wills grew up in poor circumstances in a rented house in Rose Bay with his parents, three sisters and their Aunty Fanny. His mother had had a stroke and was incapacitated. His father, who had served in the Royal Australian Navy, was a real estate agent, who was an alcoholic and used to drink away most of his earnings if he got the chance and sometimes collapsed in the street, possibly as a result of diabetes. His elder sister worked as a clerk at St Vincent’s Hospital in the late 1930s but had occasional admissions to a psychiatric facility. Before leaving school, Mr Wills was already working to support the family, doing a paper round and working outside school hours at the AGI glass factory.
Mr Wills told Mrs Wilson that he ate a lot of bread and dripping, vegetables which they grew, eggs from their chickens and occasionally a chicken, and any rabbits and fish that he caught. On one occasion, he bought a goat at Paddy’s Markets and walked it home to Rose Bay so they could have milk for their tea. The family rarely had any other red meat or sweets. They would not have been able to afford jam, but Mr Wills was given honey by an old beekeeper who lived nearby. Mrs Wilson doubted that her father would have had much for breakfast because of his paper run.
After leaving school on matriculating at the age of 16, Mr Wills worked as a clerk for the NSW Department of Transport and began studying law part-time. He served part-time in the Australian Army from October 1939 but, after his mother died, he joined the RAAF. After initial training, he travelled to Canada for further training, and, because he was colour blind, he became a navigator on Lancaster bombers in 460 squadron. He was stationed at Binbrook in England for a period of 19 months from where he flew about 30 missions over Europe. He told Mrs Wilson that most of his mates were killed during the War, and she said “his experiences in World War 2 affected him dreadfully”. After the War, he was not so ‘happy-go-lucky’ as he had been previously: he smoked and drank a lot, wanted to be alone at times and was sometimes moody with his children.
Mr Wills told Mrs Wilson that during the War, he ate a good breakfast every day in case they were called out. They ate a lot of bully beef. If they were on a mission, they would fly over Germany, land in Russia to refuel where they would have a meal of whatever was available, and then fly home.
Mrs Wilson said that at home, her father would have eggs and bacon and sausages or eggs and a chop, with toast, and tea or coffee for breakfast. When she was a child, he would always insist the children had a good breakfast. When they were living on a base or near to his work, he would come home for lunch and have something like steak and chips or salad. The evening meal would typically be meat and three vegetables followed by a sweet like bread and butter pudding, apple or pumpkin pie with ice-cream, junkets or custard. Her father said he liked to eat meat because of the lack of it as a child. Her mother says he almost craved it.
Mrs Wilson said that after the War, her father resumed employment with the NSW Department of Transport and resumed his legal studies. Initially, the family lived with his father and sisters in Kogarah where she remembered them keeping ducks. They lived behind an Italian family who used to have barbecues, for example roasting a pig on a spit. Mrs Wilson remembers them having big breakfasts and having meals comprising meat and three vegetables for dinner. Her parents bought a plot of land at Lane Cove where her father proceeded to build a house. It was his falling off the roof and injuring his back, along with his mounting family responsibilities and lack of money that persuaded him to give up his legal studies and re-enlist in the RAAF in 1954.
After re-enlisting, Mr Wills was posted to Sale and then to Richmond (Victoria), where in both cases he was adjutant for the maintenance squadron. When he was posted to Richmond in the years 1960 to 1964, the family lived in Warragul and Mr Wills drove home (a two to three hour drive) twice a week. From Richmond, he was posted to Darwin in November 1964, where he was the catering officer, managing the preparation of meals for the men and also for functions. From there, Mrs Wilson said she thought her father was posted to Toowoomba (1967), back to Richmond (Victoria) and then to Butterworth (Malaysia), where he was the catering officer. She did not go with the family to Butterworth because she had started nursing. She left home at the age of about 18.
Mrs Wilson said her father was a very active man. He always had a project going, such as building a boat. He smoked a couple of packets of cigarettes a day until he gave up smoking in about 1970. He also drank excessively at times. She observed that if he was stressed or moody, he would withdraw to his shed in order to be alone. Mrs Wilson recalled that her father would put on weight from time to time and when this happened, he would exercise more to control his weight, for example, riding a bike or swimming. He probably put on weight after giving up smoking.
Mrs Wilson said Mr Wills did not talk about what he did at work during the period 1954 to his retirement in 1975, although she remembers him saying he grew mushrooms in the hangar on one occasion. After retiring, Mr Wills completed a course at Hawkesbury Agricultural College but did not undertake other employment.
Mrs Wilson was asked about the daily post-war eating pattern questionnaire completed for Dr Volker, a consultant dietician and nutritionist, for the purpose of preparing her report. Mrs Wilson said Dr Volker completed the questionnaire from information Mrs Wilson gave to Dr Volker in a telephone interview, with help from Mrs Wills who was present during the interview. Dr Volker subsequently sent Mrs Wilson the completed questionnaire for her verification and Mrs Wilson said it accorded with what she had told Dr Volker. Her younger brother, who left home at the age of 20/21 in about 1984/1985, also read it and agreed with its contents, sending a signed copy to Dr Volker.

Dr Volker’s Evidence

Dr Dianne Volker is a consultant dietician and nutritionist who prepared a report for these proceedings dated 10 March 2009 and gave oral evidence at the hearing. Dr Volker described the methodology she followed in preparing her report, including the use of a Food Frequency Questionnaire, the aim of which is to get a more accurate idea of the person’s diet over time. For Mr Wills’ pre-service diet, Dr Volker relied on information from the 1936-1938 Survey of Household Budgets recorded in the Final Report of the Advisory Council on Nutrition because although they knew that his home situation was one of poverty and with an alcoholic father, neither Mrs Wills nor Mrs Wilson were present with Mr Wills during this period. The nutrition survey records the average animal fat and energy intake for an adult civilian male aged 14 to 59 years as 126 gm/day and 15.7 mjs/day of energy. Dr Volker said she doubts Mr Wills would, in fact, have consumed this much animal fat given the poverty of his situation and, in any event, he was probably very active at the time.
Dr Volker said it is difficult to know what Mr Wills ate during his war service, noting that this took place in Australia, Canada and England. She used information on the service rations for those countries for Mr Wills’ operational service between March 1942 and October 1945. She said that such information is generally reliable. She estimated his average animal fat and energy intake as 129 gm/day and 14.3 mjs/day of energy.
For Mr Wills’ post-war diet, Dr Volker used information provided by Mrs Wills and Mrs Wilson to complete a Food Frequency Questionnaire for Mr Wills, which Dr Volker then asked Mrs Wills, Mrs Wilson and two of her other siblings to confirm, which they did. Dr Volker estimated that during Mr Wills’ service between 1961 and 1966 (with reference to the five years before clinical onset required by SoP No 28) and 1961 and 1971 (with reference to the 10 years before clinical onset required by SoP No 29), his average animal fat intake was 199 gm/day and his energy intake 15.2 mjs/day of energy.
Dr Volker said it was likely that Mr Wills’ diet changed significantly during his war service. While before this service, she doubts he would have had two serves of meat per day, he was able to have meat, or at least a high protein meal, three times a day during operational service. Dr Volker noted evidence that airmen received three high protein meals a day because of concern over their night vision. For example, breakfast would have included eggs and perhaps a slice of bacon, and lunch and dinner would have included meat. After his operational service, his pay was better, there was someone (Mrs Wills) to cook for him, and it was easy to carry on this pattern, especially when, on the evidence of his family, this was something that he liked. So the food pattern of his war service carried over into his diet after that service.
In her report, Dr Volker concluded that as a result of his service, Mr Wills increased his animal fat consumption by 58% and 73 gm/day for the periods required by both SoP No 28 and SoP No 29 and thus satisfied the required minimal increase of 40% and at least 50gm/day (factor 5(c) of SoP No 28 and 5(a) of SoP No 29).

Consideration

As stated above, given that the first two steps prescribed in Deledio are not in issue, the first issue for the Tribunal in this case (Deledio step three) is whether any hypothesis raised by the material before the Tribunal conforms with one of the factors in the SoPs. The Tribunal must form an opinion as to whether the hypothesis raised is a reasonable one. It will do so if the hypothesis raised is consistent with the ‘template’ to be found in the relevant SoP. This requires that the hypothesis raised must conform with one or more of the factors set out in the SoP and be related to the person’s service. The Tribunal notes that at this stage in the process prescribed in Deledio it must not engage in fact-finding. Fact-finding may only take place at Deledio step four. However, we must consider whether the material before us points to positive answers to the following questions: first, did Mr Wills increase his animal fat consumption to the required degree and for the required period of time for the purposes of the applicable SoP; and second, if so, was that increase connected to his operational service? (Burns and Repatriation Commission [2008] AATA 1078, at [10])
With regard to the first question, the Tribunal accepts that given the limited evidence available about Mr Wills’ diet before his war service - essentially what Mrs Wilson remembers her father telling her - it is reasonable to assume that his consumption of animal fat was in line with that of an adult civilian male aged 14 to 59 years as recorded in the 1936-1938 nutrition survey referred to in Dr Volker’s evidence, namely 126 gm/day.
With regard to Mr Wills’ war-service, the Tribunal has before it Dr Volker’s analysis of service rations for the locations in which Mr Wills served – Australia, Canada and England – with reference, in particular, to the nature of his service in England as an airman flying missions over Europe for a period of approximately 19 months. Dr Volker estimates that Mr Wills’ animal fat consumption during this period was 129 gm/ day.
With regard to Mr Wills’ post-war diet, Dr Volker’s analysis, based on the evidence as to diet of Mrs Wills and Mrs Wilson, with confirmation from two other siblings, provided an estimate for his animal fat consumption in the period 1961 to 1971 of 199 gm/day. Ultimately, the Commission’s representative, Mr Purcell, chose not to rely on an expert report in relation to this issue obtained by the Commission for these proceedings.
On the basis of the above material as to Mr Wills’ pre-war, war service and post-war animal fat consumption, the Tribunal has formed the opinion that the material points to a positive answer to the first question and that Mr Wills animal fat consumption increased by at least 40% and to at least 50 gm/day for the period 1961 to 1971, as required by factor 5(c) of SoP No 28 and factor 5(a) of SoP No 29.
With regard to the second question whether that increase was connected to Mr Wills’ operational service, we note that Mr Wills died 22 years ago. The evidence before the Tribunal as to his consumption of fat in the post-war years is that compiled by Dr Volker based on information as to Mr Wills’ diet supplied by Mrs Wills and Mrs Wilson, and also confirmed by two of Mrs Wilson’s siblings. Dr Volker was able to draw on Mr Wills’ service records for information about his postings and weight at various times.
The Commission contends there is no connection between Mr Wills’ animal fat consumption during war service and in the period 1961 to 1971 and notes that s 119(1)(h) of the Act does not permit the Tribunal to find the existence of a causal link of which there is no evidence: Mason v Repatriation Commission [2000] FCA 1409, per Weinberg J at [75] to [76].
Mr Purcell pointed out that Mr Wills’ weight fluctuated over time. Information compiled by Dr Volker from Mr Wills’ service documents shows his weight at the following times:

on 12 September 1941, aged 21, 61.7 kgs;
on 20 November 1959, aged 39, 72.6 kgs;
on 3 May 1967, aged 47, 62.7 kgs;
on 17 April 1975, aged 55, 73.5 kgs.

Dr Volker also considered the location of Mr Wills’ postings after he rejoined the RAAF in 1954. She noted that his posting to Darwin, being the “tropics”, in 1964 could have led to a reduction in his weight in 1967, as could smoking.

As stated above, Mrs Wilson’s evidence was that her father would put on weight from time to time and, when this happened, he would exercise more to control his weight, for example, riding a bike or swimming. She also said that he probably put on weight after giving up smoking in 1970.
The Commission contended that there is no evidence of Mr Wills developing a taste for animal fat during war service or that his post-war diet was influenced by his war service. His post-war diet was normal for that time and purely a matter of personal choice, except that he was influenced by such factors as the foods available to him, his budget, and his wife’s choices. Any link with his war service is tenuous and unsupported by a reasonable level of evidence.
The Tribunal also notes Dr Volker’s evidence (Report dated 10 March 2009, p 11):
Reasons for increases in intake of animal fat can be attributed to the increased availability of meat in the post-war years compared to the war years, lifestyle and dietary changes related to married life, more money to spend on food and the ability to choose the eating pattern that the late veteran had matured to.
Mr Karp, for Mrs Wills, contended (Applicant’s Statement of Facts and Contentions, paragraph 20):
It is however reasonable to suggest that Mr Wills’ Wartime service – flying 30 missions over occupied France and Germany in circumstances where the risk of death was ever present and the fatality rate of fliers was extremely high – was exceedingly stressful. There is comfort in food, and especially fatty food …
In oral evidence, Dr Volker said that stress can lead to a person not eating, or to the person eating ‘comfort food’, for example, something sweet or savoury, or flavoursome, which could be a result of fat.
In the Tribunal’s view, the evidence upon which the Applicant seeks to rely in linking the increase in Mr Wills’ post-war consumption of animal fat with his war service is highly speculative. The increase could equally be explained, as Dr Volker seems to have acknowledged, by the increased availability of meat in the post-war years, and by lifestyle and dietary changes in part as a result of married life and increased affluence. While the Tribunal acknowledges Mr Wills’ service to the nation, in our view the causal link suggested by the Applicant is too tenuous and the second question posed must therefore be answered in the negative.
The Tribunal has therefore formed the opinion that the hypothesis raised by the material before it is not reasonable because the material does not point to a causal connection between Mr Wills’ service and his increased consumption of animal fat.
Even if the Tribunal is wrong in so concluding and it formed an opinion that the hypothesis is a reasonable one, the outcome would be the same. At step four of Deledio, the Tribunal must determine whether it is satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that Mr Wills’ death is war-caused.
As stated above at paragraph 40, in our view, the evidence as to causation is speculative. The increase in Mr Wills’ animal fat consumption post-service can equally be explained by factors other than his war or defence service. Moreover, other explanations are available for fluctuations in his weight: his exercising more to reduce/control his weight, and his giving up smoking. Essentially, there is little or no evidence supporting a causal link between an increase in Mr Wills’ animal fat consumption post-service and his operational or defence service. For this reason, the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that Mr Wills’ death is war-caused.
The decision under review must therefore be affirmed.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President, and Dr MEC Thorpe, Member.

Signed: ........[sgd].................................................................
Associate

Date of Hearing:  19 January 2010
Date of Decision:  15 February 2010
Applicant representative:                   Mr T Latimore, Legal Aid Commission
Applicant counsel:  Mr L Karp
Respondent counsel:  Mr G Purcell