Sedgwick and Repatriation Commission [2002] AATA 1129 (1 November 2002)

Last Updated: 5 November 2002

DECISION AND REASONS FOR DECISION [2002] AATA 1129

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q2000/141

VETERANS' APPEALS DIVISION )

Re BETTY SEDGWICK

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr. D.W. Muller, Deputy President Brigadier I.R.W. Brumfield, CBE, DSO, RL, Member Dr. K.P. Kennedy, OBE, Member

Date 1 November 2002

Place Brisbane

Decision The Tribunal affirms the decision that the death of the late veteran, Robert Alexander Sedgwick, was not war-caused within the meaning of that term in the Veterans' Entitlements Act 1986.

..............(Signed)........................

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

VETERANS' AFFAIRS - whether death war-caused - prostate cancer - ischaemic heart disease - animal fat consumption - whether World War II service caused smoking habit

REASONS FOR DECISION

Mr. D.W. Muller, Deputy President Brigadier I.R.W. Brumfield, Member Dr. K.P. Kennedy, OBE, Member

1. The applicant, Betty Sedgwick, is the widow of the late veteran, Robert Alexander Sedgwick. The applicant seeks a review of a decision by the respondent that the death of the veteran was not war-caused.

2. The following facts about the veteran are not in dispute and the Tribunal finds:

(i) Robert Alexander Sedgwick was born in England on 1 January 1913.

(ii) His father was a coal-miner who was in and out of work in about equal proportions. There was very little money to support the family. The family could only rarely afford to buy butter. They regularly ate bread dipped in fat. His father used to skim the cream off their milk for himself and leave the skimmed milk for the rest of the family.

(iii) He left school at the age of 14 years and was lucky enough to get a job in a shipyard. At that time he was the only person in the family who was bringing in a wage.

(iv) He arrived in Australia in about 1930, when he was 17years of age.

(v) He worked on dairy farms in Australia for about ten years until 1940.

(vi) He enlisted in the Australian Army on 5 August 1940 at the age of 27. He trained and served as a medical orderly.

(vii) He married his first wife on 13 December 1940.

(viii) He served overseas during at least four separate postings:

19.7.41 to 19.1.42 : 6 months in New Caledonia

Late 1942 to 1.2.44 : about 14 months in Port Moresby

5.10.44 to 13.2.45 : 4 months in Bougainville

6.5.45 to 11.9.45 : 4 months in Torokina

(ix) He was discharged on 6 October 1945.

(x) From 1945 to 1954 he was a storeman and packer at a woolbrokers warehouse in Brisbane.

(xi) From 1954 until he retired in July 1978 he was a shipping clerk.

(xii) He received a service pension from 1 August 1978.

(xiii) His first wife died in late 1974 or early 1975.

(xiv) He met the applicant in December 1975 and they were married on 23 December 1978.

(xv) He died on 29 April 1999. The cause of death noted on the Death Certificate was:

"1(a) Renal Failure

1(b) Carcinoma prostate with ureteric obstruction

2 Ischaemic heart disease"

3. Two hypotheses were submitted on behalf of the applicant to link the veteran's death with his Army service in World War II.

(i) Prostate Cancer: As a result of his service the veteran increased his daily consumption of animal fat by at least 40% to at least 70 grams per day for at least 20 years before the clinical onset of malignant neoplasm of the prostate. Statement of Principles No. 84 of 1999, factor 5(c), provides that one of the risk factors associated with contracting malignant neoplasm of the prostate which may link the onset of the cancer to war service is increasing animal fat consumption by at least 40% and to at least 70 grams per day for at least 20 years before the clinical onset of malignant neoplasm of the prostate.

(ii) Ischaemic Heart Disease: Statement of Principles No. 38 of 1999, factor 5(e)(ii), provides that one of the risk factors associated with the contraction of ischaemic heart disease is smoking at least five pack years of cigarettes with the clinical onset of ischaemic heart disease occurring within 15 years of cessation of smoking. It was submitted that the veteran developed a smoking habit as a result of his war service.

4. The Tribunal is faced with the following problems in assessing whether or not there is a reasonable hypothesis linking the veteran's war service to any possible increase in animal fat consumption which may have increased the risk of his death from prostate cancer:

(i) There is no evidence before the Tribunal as to the veteran's diet before he enlisted.

(ii) The experts who have given evidence in other similar cases agree that the average Australian male pre World War II diet contained 123.5 grams of animal fat per day. Whether or not the veteran consumed the average, or more or less, is unknown.

(iii) There is no evidence before the Tribunal as to the veteran's diet during service. The food experts agree that the average diet of a service man in the south-west Pacific in the latter stages of World War II which consisted of ration packs, contained 131.8gms of animal fat per day.

(iv) The veteran was 27 years of age when he enlisted. One would expect that his eating habits were fairly well established by that age.

(v) There is no evidence as to the veteran's diet after service until his second marriage in December 1978.

(vi) The applicant, who was the veteran's second wife, replied to a diet survey from the respondent in which she listed the veteran's average daily intake of food during her marriage to the veteran. If her reply was accurate, the veteran had a daily intake of animal fat of 530.7 grams. (An expert in nutrition, Ruth English, gave evidence that it would be impossible to eat that amount of food over a lengthy period without a massive weight gain.)

(vii) The records of the veteran's weight available to the Tribunal show the following:

09.07.40 (on enlistment) 144lb - 65.32kgm

01.10.45 (on discharge) 153lb - 69.40kgm

22.06.87 - 66.5kg

13.07.87 - 70kg

08.02.88 - 76kg

06.06.88 - 74kg

03.10.88 - 78kg

19.01.89 - 78kg

11.09.89 - 79kg

10.09.90 - 83kg

20.09.90 - 83kg

13.03.91 - 76kg

21.10.91 - 82kg

31.08.92 - 84kg

08.02.93 - 80kg

11.10.93 - 83kg

02.11.93 - 81.6kg

06.05.94 - 85kg

22.08.96 - 82kg

(viii) The veteran's weight seems to have remained about the same from the date of his discharge until about 1988. From about the age of 75 he began to gain weight. He put on about 10 to 14 kgm between the ages of 75 and 78.

(ix) The only acceptable evidence about the veteran's diet was that from 1978 onwards he enjoyed simple foods such as chops, eggs, sausages and meat pies. The Tribunal accepts that he probably enjoyed those foods before 1978 as well. The Tribunal also notes that the veteran's favourite foods were the same as almost everyone else of the veteran's age in the Australian community whether they served in World War II or not.

5. The available evidence suggests to the Tribunal that the veteran did not begin to increase his weight until he became more immobile after retirement and with increasing age.

6. If the veteran ate the national average diet pre war and then ate the whole of his ration packs during World War II he would have increased his animal fat consumption by a mere 7%.

7. The Tribunal is not satisfied that the material available to it supports an hypothesis that the veteran's post World War II diet had an animal fat content different to what it had been before his enlistment. There is no material which raises any hypothesis that the veteran's service had an influence on his diet after World War II.

8. Consequently, the Tribunal finds that the veteran's prostate cancer was not war-caused.

9. The hypothesis advanced relating to heart disease caused by a service related smoking habit also has problems for the applicant. The main hurdle was created by the veteran himself. On 4 August 1996, the veteran made a claim on the respondent for coronary artery disease. He signed a smoking report in which he said that he started smoking in January 1974 because:

"My first wife's ill health and she became a heavy smoker and had a cigarette at night when relaxing with her."

In January 1997, the veteran wrote the following letter to the respondent:

"My application for further benefits and some serious operations was passed over because I was a non smoker. My first wife was a heavy smoker, as we were married for more than twenty years I thought passive smoking would be a help to my case.

I hope you will look at my case history and review the decision you made in 1996."

10. The applicant gave evidence that the veteran smoked regularly when she first met him in 1975. After they were married in 1978, the applicant banned smoking in the matrimonial home but she believed that the veteran continued to smoke until he had an operation in 1980. After the veteran's death, the applicant found some cigarettes in the veteran's drawer. This finding of the cigarettes suggested to the applicant that the veteran probably continued to smoke after 1980. The applicant was also surprised to discover, after the veteran's death, that he regularly visited the local RSL Club for many years before his death. The applicant thinks that the veteran may have indulged in smoking at the RSL Club.

11. The applicant's daughter, Sandra Hoareau, gave evidence that the veteran worked for her for twenty years in her fruit shop, from 1979 until his death in 1999. Although Mrs. Hoareau saw the veteran on a daily basis for about twenty years she never saw him smoking a cigarette. However, she believes that the veteran did have a cigarette or two from time to time because she often noticed that she could smell cigarette smoke on his clothes and on one occasion she saw a couple of cigarettes in his kit bag.

12. A niece of the veteran, Corinna White, gave evidence that she visited the veteran at his home in 1954 and in 1962. She said that she had always believed that the veteran was a heavy smoker. She admitted in cross-examination that she had never actually seen the veteran smoking.

13. The Tribunal finds great difficulty in ignoring the statement by the late veteran himself that he did not start smoking until 1974 and that he did so to keep his first wife company when she became ill.

14. The Tribunal would also have great difficulty in determining the extent of the veteran's smoking habit, if he had one, because the only witness to claim to have seen the veteran actually smoking a cigarette was the applicant and she had banned him from smoking at home.

15. The Tribunal is not satisfied that the veteran had a smoking habit prior to 1974. The Tribunal is satisfied that if the veteran did smoke after 1978 it was to the very minor extent of a few occasionally.

16. The Tribunal finds that the material placed before it does not raise an hypothesis linking the veteran's World War II service with a smoking habit.

17. Consequently, the veteran's ischaemic heart disease was not war-caused.

18. The Tribunal affirms the decision under review that the death of the veteran, Robert Alexander Sedgwick, was not war-caused.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of

Mr. D.W. Muller, Deputy President;

Brigadier I.R.W. Brumfield, Member and

Dr. K.P. Kennedy, Member

Signed: .....................................................................................

B. Hitchcock, Personal Asst

Date/s of Hearing 28 August 2002

Date of Decision 1 November 2002

Counsel for the Applicant Mr. A. Harding

Solicitor for the Applicant Gilshenan and Luton

Counsel for the Respondent Ms. E. Ford