Mason and Repatriation Commission [2002] AATA 1329 (23 December 2002)

Last Updated: 24 December 2002

DECISION AND REASONS FOR DECISION [2002] AATA 1329

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1378

VETERANS' APPEALS DIVISION )

Re UNA MASON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member Rear Admiral A R Horton, AO, Member

Date 23 December 2002

Place Sydney

Decision The tribunal sets aside the decision under review and substitutes its own decision that the applicant has qualified for a War Widow Pension with effect from 18 September 1995.

[SGD]Senior Member

CATCHWORDS

VETERANS' ENTITLEMENTS - War Widow Pension - malignant neoplasm of the prostate - whether veteran increased animal fat consumption by at least 40% to at least 70 grams a day for at least 20 years before clinical onset of malignant neoplasm of the prostate - whether increased consumption of animal fat related to operational service - Schofield Equation

Veterans' Entitlements Act 1986 ss 11(1), 120(1), (3), 157(2)(a)(ii), 177(2)(a)

Statement of Principles 84/99 as amended by 69/02 concerning malignant neoplasm of the prostate

Bull v Repatriation Commission (2001) 66 ALD 271

Deledio, Repatriation Commission v (1998) 49 ALD 193

Keenan and Repatriation Commission, Re [2000] AATA 707

Mason and Repatriation Commission, Re [2001] AATA 461

Towle and Repatriation Commission, Re [2000] AATA 706

REASONS FOR DECISION

23 December 2002 Mr M J Sassella, Senior Member Rear Admiral A R Horton, AO, Member

THE APPLICATION

1. This is an application to the Administrative Appeals Tribunal ("the tribunal") by Una Mason ("the applicant"), widow of deceased veteran, Peter George Mason ("Mr Mason", "the veteran"), for review of a decision of the Repatriation Commission ("the respondent") dated 25 August 1995 (T18) as affirmed on 22 September 1998 (T22) by the Veterans' Review Board ("the VRB"). The decision was that the death of the veteran was not causally related to his service in the Royal Australian Air Force ("the RAAF"). This meant that the applicant did not qualify for a War Widow Pension.

THE HEARING

2. The tribunal convened a hearing in this matter in Sydney on 17 October 2002. Mr N Dawson of counsel represented the applicant. Miss R M Henderson of counsel represented the respondent. The tribunal heard oral evidence from Mr W Friderich, a dietitian. The tribunal took into evidence the following documents:

Exhibit TD1 - Section 37 Statement for application number N98/1428 with associated documents (exhibits T1 - T24) provided by the respondent.

Exhibit A1 - Applicant's amended statement of facts and contentions, 16 October 2002.

Exhibit A2 - Statutory declaration of applicant, 1 October 2002.

Exhibit A3 - Letter dated 23 October 1998 from Miss D Coffey of the United Kingdom Ministry of Defence to the applicant.

Exhibit A4 - Statement by applicant, 21 October 1998.

Exhibit A5 - Report by Dr P Lyons-Wall, nutritionist, 26 March 2000.

Exhibit A6 - Letter dated 18 October 1998 from Mr A Copeland to the applicant.

Exhibit A7 - Letter to whom it may concern dated 16 October 1998 from Mr W Moffatt of "460" Squadron (RAAF) Association.

Exhibit A8 - Letter to whom it may concern dated 21 October 1998 from Mr B P Giles.

Exhibit A9 - Extract (pages 308-309 and 314 - 317) from the RAF Manual of Cooking and Diet.

Exhibit A10 - Transcript from hearing in application N1998/1428, 26 - 27 October 2000.

Exhibit R1 - Respondent's statement of facts and contentions, 24 April 2002.

Exhibit R2 - Report by Mr W Friderich, dietitian, 16 March 2002.

Exhibit R3 - Report by Mr Friderich, 17 March 2002.

Exhibit R4 - Report by Mr Friderich, 23 June 2002.

Exhibit R5 - Report by Mr Friderich, 13 October 2002.

Exhibit R6 - Report by Mr Friderich, 16 March 2002.

Exhibit R7 - Curriculum vitae of Mr Friderich.

Exhibit R8 - Report by Dr R English, AO, "Animal fat in the Australian diet including the Armed Services' rations in World War 2", August 1998.

Exhibit R9 - Chapter 11 ("Consumer Rationing") of book, "Australia in the War of 1939 - 1945", by S J Butlin and C B Schedvin, published 1977.

Exhibit R10 - Article by P M Warwick, "Predicting food energy requirements from estimates of energy expenditure", (1989) Australian Journal of Nutrition and Dietetics 46 Supplement S3.

3. This application was being re-heard by the tribunal. A similarly constituted tribunal had heard the same case as application number N1998/1428 in October 2000. The tribunal handed down its decision in Re Mason and Repatriation Commission [2001] AATA 461 on 29 May 2001. That decision was appealed to the Federal Court from where, by consent, it was set aside and the matter was remitted without a hearing to the tribunal for re-hearing.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

4. The tribunal makes the following uncontroversial findings.

* The veteran served in the RAAF and rendered operational service from 30 January 1943 to 21 March 1946 (T14).

* The applicant lodged a valid claim on 21 August 1995 (T15).

* The date of effect of any decision favourable to the applicant would be 18 September 1995 (ss 157(2)(a)(ii) and 177(2)(a) of the Veterans' Entitlements Act 1986 ("the Act")). This was because the applicant took more than three months to apply to the VRB after receiving notice of the respondent's decision, ie from 25 August 1995 until 18 March 1996.

* The veteran's cause of death was prostate cancer (T16).

* The standard of proof in relation to whether the veteran's prostate cancer was a war-caused disease is the reasonable hypothesis standard (s 120(1), (3) of the Act).

* The Statement of Principles ("SoP") relevant to the determination of this matter is SoP 84/99 as amended by SoP 69/02 concerning malignant neoplasm of the prostate.

5. The applicant claimed a War Widow Pension on the basis that the death of the veteran was war-caused. As a dependant (under s 11(1) of the Act) of the deceased veteran, if he did die of a war-caused disease, the applicant would qualify for War Widow Pension. The basic issue, therefore, was whether the veteran's death was war-caused.

6. The full Federal Court has held that, in an operational service case such as this, there are four steps to be considered in assessing whether an applicant will succeed in her claim that a deceased veteran's disability was war-caused. The authority is Repatriation Commission v Deledio (1998) 49 ALD 193, 206.

7. The first step is to consider whether the material before the tribunal points to a hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the veteran. As summarised by the respondent, the material provided to the tribunal pointed to a hypothesis connecting the death of the veteran from malignant neoplasm of the prostate to the service rendered by the veteran (ex R1, paragraph 26).

8. The second step is to ascertain whether there is a relevant SoP in force. As noted in paragraph 4 above, the relevant SoPs are 84/99 and 69/02.

9. The third step is to form an opinion as to whether the hypothesis raised is reasonable. If the hypothesis is consistent with the template in the SoP it will be reasonable. The hypothesis raised must contain at least one of the factors in the SoP which the SoP says must exist, and that factor must be related to the applicant's service. The relevant factor in the SoP is:

5.(c) 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; or

10. This takes the tribunal to an assessment of the material before it. The tribunal has decided to adopt the material from its earlier decision as part of its assessment. The parties proceeded in the present application on the basis that that material was still before the tribunal and they referred to it in argument. That material was not criticised at the Federal Court. The relevant material from the earlier decision is found in paragraphs 7 - 15 of [2001] AATA 461:

"7. The Applicant gave evidence both orally and at Exhibit A6 in respect of her late husband's dietary habits. She gave evidence from her own observations in the period from first meeting the veteran in 1940, but relied on her knowledge of common Australian eating standards and the recollections of old school friends for the earlier period in his life. She relied on advice from his peers and that provided by the Ministry of Defence, London (Exhibits A1 and A2) as regards the likely dietary standards and practices during his war service. Evidence from other ex-service personnel was provided to the Tribunal at Exhibits A3, A4 and A5, and oral evidence was given for the Applicant by Mr A Copeland and Mr B P Giles. Dr Lyons-Wall, a nutritionist, also gave expert evidence.

8. The veteran was born in 1924, his family living on an orchard in the Castle Hill area of Sydney. Mrs Mason suggested that his pre-war diet would have been similar to that common in the community at that time, cereal and fruit juice at breakfast, sandwiches for lunch and a cooked meal at dinner, but thought the fare would have been quite simple, particularly in respect of growing up during the depression. The veteran attended King's School as a day boy, and from other evidence, he did not partake of meals at the school.

9. In January 1943, and directly after leaving school, the veteran joined the RAAF. He undertook pilot training through the Empire Air Training Scheme, initially in Australia, before taking passage to the United Kingdom, where he was stationed from 27 January 1944 to 4 January 1946. On completion of his training at Royal Air Force ("RAF") establishments in the United Kingdom, he served on 460 Squadron (RAAF) with Bomber Command, participating in operations flying Lancasters over Europe.

10. Mr A Copeland provided a statement at Exhibit A5 and gave evidence by telephone. He knew the veteran from about 1930, and attended King's School with him, also as a day boy. They joined the RAAF together, and had parallel careers, Mr Copeland also flying Lancaster bombers with 460 Squadron. He considered the standard and variety of food in RAAF establishments as being better than that available to civilians; 'there was no rationing.' Eggs and food containing animal fats were readily available. Food during the voyage to England, and whilst serving in RAF establishments was 'quite different to that experienced at home and in the RAAF'; eggs cooked in rancid butter during the voyage, and lots of fried food and 'eggs dripping with fat', at RAF establishments. Whilst there were relatively few vegetables, aircrew in particular did not suffer the privations of the rationed civilian population in the United Kingdom. There was plenty of food, and an entitlement to additional meals, such as fried eggs and bacon and welsh rarebit before and after operations. He considered the night flying suppers as 'always welcome', and in response to questioning from the Respondent, he stated that aircrew ate large meals before operational flights.

11. Mr B P Giles provided a statement at Exhibit A3 and gave oral evidence to the Tribunal. He too knew the veteran from childhood and also attended King's School. He commenced pilot training before the veteran, but their courses were similar. He served in a RAF Bomber Command squadron flying Lancasters. In Exhibit A3 he stated that 'in both Australia and Britain, air force personnel, particularly aircrew, were well fed, ...if perhaps not wisely in the light of present knowledge.' He saw aircrew as being young with good appetites and 'being plied with all types of animal fatty products.' He described meals to the Tribunal as often swimming in fat, with plenty of bacon, eggs, pork pies, fish and chips and fried bread, and usually on a self service basis. There was usually a desert such as pudding for one meal, but not much fruit. During flights, which lasted anywhere from about six to eight hours, aircrew carried limited flight rations such as chocolate, dried fruit and coffee, and each man carried an small emergency pack. Crew generally remained at their operating station. The Tribunal found Mr Giles to be a forthright and credible witness.

12. At Exhibit A4, 460 Squadron (RAAF) Association stated that the food regime was generally 'pretty much the same' (for aircrew at the different air stations) and 'principally contained a lot of "fatty" items'. The Association considers that the style of food served to Australian servicemen in the United Kingdom 'was, in most cases, foreign to their normal diets'.

13. Dr P Lyons-Wall gave telephone evidence in support of her comprehensive report at Exhibit A7. In response to a request by the Applicant for professional opinion on a number of issues relating to the fat intake of the veteran, she drew the following conclusions:

(a) the veteran consumed an average of 71 g of saturated animal fat for about 25 years after service, based on the evidence given to her by the Applicant, and hence met that component of the criteria in the SoP Instrument No. 191 of 1996 paragraph 1(b);

(b) the veteran's animal fat consumption increased by over 200% during his RAAF service (to about 92 g) from that estimated (44g) as being consumed pre-war, this increase being related to the ready availability of foods high in animal fats. Hence, the veteran would meet that component of the criteria in Instrument No. 191 of 1996 paragraph 1(b); and

(c) the increase in animal fat consumption during service contributed to the formation of a habit which continued post war for two reasons, namely a greater variety of food and an increase in the quantity, the latter being corroborated by the weight gain of the veteran.

14. Dr Lyons-Wall addressed the evidence in support of her conclusions during examination in chief, conceding that she was perforce required to base some of her conclusions on the recollections of the Applicant and the evidence of other aircrew. In cross examination, she conceded that her conclusions were based on estimates, but given that the estimated consumption was for saturated fats, the total fat consumption (as defined in Instrument No. 191 of 1996), could well be higher to the extent of some 10g daily. She conceded that the veteran had a choice as to his diet post war, but reaffirmed her view that his war experience at an impressionable young age, with the introduction to a wider variety of food and an associated increase in consumption, had a significant influence on his eating habits thereafter, until about 1970. At this stage his children left home, and his wife was able to modify his diet to take account of medical advice. In response to the Tribunal, Dr Lyons-Wall indicated that the pre-war diet as evidenced by the Applicant accorded with her own research and the views she recalled of her parents. She agreed that Australians pre 1960 or so basically followed a British diet, but ate less fried food and fat.

15. Returning to the medical history of the veteran, a composite report was prepared by Dr H M Learoyd, Consultant Urologist, on 7 March 1996 (T20) in which he detailed the 'relationship between Mr Mason's war service and his stone formation'. This indicates that in 1976, a calculus was treated, with a further renal calculus being treated by operation in 1970. A number of urinary and bladder problems occurred spasmodically until August 1993, when the veteran was diagnosed as having carcinoma of the prostate. The death certificate shows that he died on 15 May 1995 of prostate cancer. Dr Learoyd postulated that the development of prostatic obstruction 'was an immediate consequence of his renal surgery and the ultimate progression to malignancy of the prostate was related to the trauma of the numerous endoscopic procedures'. Thus he considers it reasonable to state that the veteran's war service ultimately contributed to his death from prostate carcinoma. The Veteran's Advocacy Service subsequently requested the RMA to investigate the hypothesis developed by Dr Learoyd, in accordance with section 196E of the Act. The advocate for the Applicant believes this investigation has been undertaken, but no relevant amendment to the Statement of Principles for Malignant Neoplasm of the Prostate has eventuated."

11. At the 2002 hearing the respondent called Mr Friderich to give oral evidence. He had interviewed Messrs Giles and Copeland, former colleagues of the veteran. They gave evidence at the earlier hearing regarding war time diets for RAAF members who were sent to serve in the United Kingdom. Mr Friderich had administered questionnaires to these two gentlemen in March 2002. Having obtained their evidence as to the food they consumed at that time Mr Friderich then assessed the energy they would have derived from consuming such food in the stated amounts. He assessed also the consumption of animal fat implied by the questionnaires. He arrived also at an "activity factor" representing an assessment of the activity done by each subject which would burn up the energy taken in as food consumed. He derived the activity factor by questioning Messrs Giles and Copeland about organised activities during UK military service. He used these figures to ascertain the veteran's energy requirements.

12. Mr Friderich reported that he used the "Schofield Equation" to determine energy intake and utilisation. He used the Foodworks computer program to derive the energy value of food eaten. Both these tools have been used in earlier tribunal matters relating to fat consumption. Foodworks is used commonly by dietitians in Australia. The Schofield Equation has been adopted since 1985 by the World Health Organisation as the best method of determining energy requirements of individuals.

13. Mr Friderich told the tribunal that the Schofield Equation has to be used allowing for differences between subjects. Different individuals consuming similar diets can increase their weight to different degrees. This can be caused by variations in muscle mass, fatness, etc. However, the ratio of difference between individuals is less than 10%. The equation takes a person's body weight and measures the "basal metabolic rate" of a person at rest. Activity factors are then applied as multiples of the Schofield Equation to ascertain energy requirements as affected by activity. The Schofield Equation differentiates between men and women and between people of different ages. The age groups are:

* 10 - 18 years;

* 18 - 30 years;

* 30 - 60 years; and

* over 60 years.

14. Mr Friderich said more about activity factors. He accepted from evidence from Messrs Giles and Copeland that during service there was no structured physical activity program. Mr Friderich rejected the suggestion that a person who is particularly stressed or nervous could burn energy faster than a "normal" person though at rest. Mr Friderich said that that was a very limited component. Statistically, such a consideration would not be included as activity. At the same time such a person might be expected to increase physical activity by pacing or other actions. It was suggested that going on a bombing run during a world war might involve a different activity factor though literally sedentary. Mr Friderich responded that he had adopted an activity factor reflecting a moderate level of activity, not a factor related to a sedentary lifestyle, and that reflected an allowance for the type of factor suggested. He said that there was no research to his knowledge concerning the stress factor affecting an air crew member and the resultant expenditure of energy. He had assigned activity factors of 1.8 pre-service and 1.7 during service. For an athlete the factor would be around 2.8. Activity factor 1.7 to 1.8 applies to a person doing about an hour of light physical activity followed by some more strenuous activity and then standing on their feet for the rest of the day but doing no heavy work.

15. The Foodworks program was also discussed in some depth. Mr Friderich conceded that the trends have recently been towards leaner cuts of meat in the Australian diet. However, when using Foodworks to arrive at a nutritional analysis as at a past time, the program can be adjusted to factor in a higher fat level for a given quantity of meat of a certain type.

16. Mr Friderich had certain information about the veteran's height and weight. From that he formed conclusions:

* At enlistment the veteran's body mass index ("BMI") was 17.8. He was underweight, indicating that his energy intake was not high enough to meet his normal body weight. A normal BMI is at least 20. Overweight begins at a BMI of 25.

* At discharge the veteran's BMI was 19.8.

* In 1987 the veteran's BMI was 24.9.

Mr Friderich told the tribunal that a person tends to use just over 4,200 kilojoules a day.

17. Mr Friderich concluded that the veteran was never overweight during his adult life, based on the weight readings available. His weight increased slowly over time, which is normal. Up until 1946 the veteran was said to be a very lean person. His energy intake between 1942 and 1946 was only slightly above his requirement and this caused some weight gain.

18. In ex R3 Mr Friderich concluded:

"Mr. Mason['s] weight should have increased dramatically if he was consuming the reported quantity and type of food.

"In my opinion, it is unlikely that the increases in animal fat reported in the Lyons-Wall report reflect the actual intake of Mr. Mason. Based on the evidence available, I do not believe the animal fat intake reported for Mr. Mason is accurate. Body weight is a good physiological indicator of energy consumption when activity factors can be determined. As Mr. Mason was always below or within the healthy weight range, I had concluded that it is unlikely that Mr. Mason meets the requirements as set out in the Statement of Principles concerning Malignant Neoplasm of the Prostate 5(c)."

19. In cross-examination it was emphasised that Mr Friderich's assessment had been that satisfaction of the SoP in the deceased veteran's situation was "unlikely", not impossible. Further issues raised in cross-examination were:

* That the important issue in the SoP was animal fat intake rather than total energy intake. This was to deal with Mr Friderich's theories based on Mr Mason's assumed energy intake and energy expenditure.

* In ex R2 Mr Friderich concluded that, if Mr Mason consumed a similar service diet to Mr Copeland, whom he interviewed on 12 March 2002, then his daily animal fat intake (116 g) would have been below that of the Australian civilian population of 1944 (122 g). This latter figure was based on the Ruth English report (ex R8). The tribunal noted that Mr Friderich made similar calculations based on an interview with Mr Giles (ex R6), however Mr Giles reported consumption of much more animal fat (152 g a day) than Mr Copeland. Mr Friderich discounted these results because Messrs Mason and Giles were not stationed together. He said it was unclear that they were offered the same food. Mr Friderich agreed that it may be a considerable assumption to make to accept that the diets of Messrs Mason and Copeland were similar. However, in a context such as this such a methodology is the best available.

* Mr Friderich had assumed that the veteran's pre-war fat consumption equated to that of the general population. He relied on the report by dietitian Ruth English (ex R8) for this data. This was criticised because Mr Mason's BMI at that time was so low as to cast doubt on whether his fat consumption was up to normal levels.

* Mr Friderich had relied on material suggesting that, as a schoolboy, Mr Mason was quite physically active, playing cricket and football (ex R3; T3/22). This would have restrained his body weight.

* In ex R5 Mr Friderich recalculated Mr Mason's animal fat intake over time according to the food records used by Dr Lyons-Wall. That resulted in an increase in animal fat consumption from 73 g daily pre-service to 178 g daily during service. This would satisfy the SoP factor. Post-service, according to Dr Lyons-Wall, Mr Mason's animal fat consumption fell to 120 g daily, a rise compared to pre-service sufficient to meet the SoP factor. However, Mr Friderich did not really accept Dr Lyons-Wall's figures for Mr Mason's consumption of animal fat.

20. In final submissions Mr Dawson suggested that there was a hypothesis connecting Mr Mason's malignant neoplasm of the prostate with his war service and pointed to the respondent's acknowledgment of this in paragraph 26 of its statement of facts and contentions (ex R1). Mr Dawson then submitted that the hypothesis fitted the template in SoPs 84/99 and 69/02. He submitted that nothing said by Mr Friderich was at such a level as to convince the tribunal that the hypothesis fails to fit the SoP template when all the material before the tribunal is considered. He referred to the fourth step in Deledio (above), ie the tribunal must decide whether it is satisfied beyond reasonable doubt that the applicant's incapacity did not arise from a war-caused injury. Given that Mr Friderich said no more than that Dr Lyons-Wall's hypothesis was unlikely, the tribunal was said to be in no position to find beyond reasonable doubt that the malignant neoplasm of the prostate was not war-caused.

21. Mr Dawson incorporated by reference the submissions on the applicant's behalf from the earlier hearing. In summary these were:

* From the time of the veteran's enlistment to his discharge he gained 7.3 kg.

* From discharge until 1992 he gained 20.9 kg.

* Based on Dr Lyons-Wall's report, the veteran increased his animal fat consumption to the requisite degree for two reasons. One was the ready availability of animal fats for air crew. The other, based on Re Keenan and Repatriation Commission [2000] AATA 707, paragraph 31, adopted the opinion of Dr Justin Kenardy, writing as part of a Department of Veterans' Affairs ("DVA") consultancy:

"30. In claiming that the veteran's post-service animal fat consumption habits could have been influenced by his war service, the applicant relied on the opinions of Dr Kenardy expressed in his reports (exhibits R1 and R2) that

'it is possible that a person (specifically a young adult) could develop a generally increased preference and consumption of fat in excess of need following exposure to elevated levels of fat in a diet, in the presence of a previously lower consumption of fat' (exhibit R2, p 8)

'... there is some evidence that fat might have some of the qualities of an addictive substance ...' (exhibit R2, p 7)

'... it could be also be [sic] concluded from Blundell and MacDiarmid's (1997) proposal that exposure to fat generally leads to increased fat consumption' (exhibit R2, p 6) "

* War service made more than a de minimus contribution to the veteran's post-war high fat diet. Even if there was an element of personal choice, as the respondent contended in October 2000, there remained the contribution from service.

22. The tribunal finds that the date of clinical onset of Mr Mason's malignant neoplasm of the prostate was August 1993 when Mr Mason was diagnosed with an early malignancy (T20/74).

23. Miss Henderson essentially targeted the third step in Deledio (above) to cast doubt on the reasonableness of the hypothesis. She submitted that Dr Lyons-Wall's conclusions were "unsafe" for several reasons:

* Miss Henderson noted that, for the veteran's pre-war food consumption, Dr Lyons-Wall had relied on information from the applicant as to the food she and her friends ate at that time. She said she also relied on what her own mother had described as familiar food in her mother's childhood. This was said not to be relevant to the food eaten by the veteran at all. Mr Dawson pointed out that Mrs Mason relied also on recollections of the veteran's sister's eating habits from pre-1943. He suggested that these were likely to be similar to the eating habits of the veteran.

* Miss Henderson said that a preferable source of information on Australian eating habits in the 1930s was the results of a survey discussed in Ms English's report (ex R8) which dealt with eating habits in 1936-1938. Amongst other things this considered the fat intake of an average Australian at the time. Miss Henderson pointed out that the figures arrived at in that survey did not agree with Dr Lyons-Wall's assessment in that a person consuming as little fat as Dr Lyons-Wall accepted Mr Mason to have done pre-service would have been located in the lowest 2% of the Australian population. The Lyons-Wall figure was described as unusual and unconvincing. Miss Henderson referred to the decision of the tribunal in Re Towle and Repatriation Commission [2000] AATA 706 where a strong tribunal elected to apply the 1936-1938 survey figures where there had been an understated estimate of pre-enlistment animal fat consumption:

"41. Mrs Towle completed a dietary survey on 26 August 1999 (exhibit A7, analysed by the applicant's dietician in exhibit A22). According to that survey, the respondent claims the veteran's intake of animal fat before he enlisted was about 24 gm/day. The animal fat intake indicated in the dietary survey compares with the average animal fat intake of adult males (as measured in 1936-1938) of 122 gm/day (exhibit R3). In oral evidence Mrs Towle said that she had underestimated Mr Towle's pre-war consumption of milk, butter and dripping. The Tribunal accepts that the veteran's pre-war animal fat intake was most likely to be the same as the animal fat intake of adult males as measured in 1936-1938, namely 122 gm/day."

The figure of 122 g was an average derived from a range of 114 g to 130 g a day. Later, in response, Mr Dawson pointed out that Mr Mason was aged only 12 in 1936, whereas the survey results applied to adult members of the population. The tribunal noted that the figure advanced for the veteran in the instant case was considerably higher than 24 g.

* Miss Henderson said that, when speaking to Dr Lyons-Wall, Mrs Mason had understood Australia to be involved in rationing when Mr Mason enlisted. This suggested that foods such as butter and meat were in limited supply. Dr Lyons-Wall adopted this in her report. This was said not to be correct. Exhibit R9 at pages 304-306 showed that butter rationing commenced on 7 June 1943. Meat rationing commenced in 1943. Meat and butter are of course rich sources of animal fat. Miss Henderson suggested that rationing figured strongly in what Mrs Mason thought the veteran had eaten pre-service. Mr Dawson in response submitted that the point Mrs Mason was making was that she recollected that butter, meat and such items were in short supply before Mr Mason enlisted. He said that this could have been the case even if rationing had not commenced.

* Miss Henderson pointed out that the veteran's family was middle class. The veteran's father was an orchardist who studied to become accountant. As an accountant he moved the family to Stanmore, a Sydney suburb. The veteran went to The King's School, albeit as a day boy. His food was provided from home. It was suggested that such a family background would found an assumption that the veteran's fat consumption was more likely to have been 114 g a day than 70 g a day.

* Miss Henderson said that Dr Lyons-Wall's opinions regarding the veteran's service diet were based on the information she had from Messrs Giles and Copeland. Miss Henderson suggested some vulnerabilities in this material. First, she noted that the two men had experienced different diets. They had apparently served in different locations. Second, she said that Dr Lyons-Wall had assumed that butter was available to Air Force men but was otherwise rationed. Mr Giles's evidence on 27 October 2000 had been that butter was not readily available at that time. Mr Giles said that margarine was used instead of butter. Third, she said that Dr Lyons-Wall had assumed that large quantities of meat were available to servicemen. However, Mr Giles had told Mr Friderich that meat was available in lower quantities than before enlistment. Fourth, she said that Dr Lyons-Wall had assumed servicemen had access to quantities of cream and ice cream. In fact, in advice given to Mr Friderich by both Mr Giles and Mr Copeland was that they saw cream or ice cream never or less than once a week. There had been some freely available ice cream on the ship to England from Australia.

* She indicated that the applicant and Mr Mason married in 1950. The applicant was able to give substantial information about Mr Mason's diet from 1950, which was uncontradicted by the respondent, however there was nothing relating to 1946-1950. Mr Dawson did not appear to accept this. He said that the applicant gave some considerable evidence about Mr Mason's diet after service. However, on 26 October 2000 the applicant told the tribunal that she had no direct knowledge of Mr Mason's diet between 1946 and 1950. Mr Dawson must have been referring to the material from Mrs Mason about 1950 and later. As regards 1946-1950, Mrs Mason said that Mr Mason's diet would have been "just a normal home type diet". However, the applicant was aware that the veteran's diet from 1950 included milkshakes, cream and ice cream, items not provided, or not regularly provided, during service. There was no alignment between the service and post-service diets in Miss Henderson's analysis.

24. Some of the material before the tribunal, notably that from Dr Lyons-Wall, points to a hypothesis that:

* The veteran consumed an average of 44 g a day of animal fat pre-service.

* The veteran consumed an average of 92 g a day of animal during service.

* The veteran consumed an average of 71 g a day of animal fat for about 25 years after service (see paragraph 10 above, paragraph 13 of extract).

25. Elsewhere, an estimate by Mr Friderich based on Dr Lyons-Wall's records, corrected to deal with SoP definitional issues, yielded the following trends in animal fat consumption:

* The veteran consumed an average of 73 g a day of animal fat pre-service.

* The veteran consumed an average of 178 g a day of animal during service.

* The veteran consumed an average of 120 g a day of animal fat for about 25 years after service (see paragraph 19 above, fifth bullet point).

26. Either version of the hypothesis satisfies factor 5(c) of SoP 84/99 (see paragraph 9 above) provided the increased animal fat consumption was related to service, as required in clause 4 of the above SoP.

27. However, the Federal Court has held that, even if the hypothesis as raised is consistent with the SoP, if it nevertheless is fanciful, impossible, incredible, too remote or too tenuous, it can be found to be not a reasonable hypothesis. In the full Federal Court decision of Bull v Repatriation Commission (2001) 66 ALD 271 Emmett and Allsop JJ said at pages 276-277, 282:

"18 It is important to understand the following about East. The Court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable. The material must point to the connecting hypothesis: see the emphasised paragraph in [17] above. ...

...

21 There is no doubt that the Tribunal is obliged to look at all the material, not just some of it. It is not entitled at this point to find facts or reject matters. See generally Gleeson v Repatriation Commission (1994) 34 ALD 505, 509.

22 The formation of the opinion called for by subs 120(3) involves an assessment of the factual material before it. It involves reaching an opinion about a factual matter. It is, in that sense, a question of fact: Bey, supra at 373 and Repatriation Commission v Owens (1996) 70 ALJR 904. Here the Tribunal, on the material before it, formed the opinion that a relevant reasonable hypothesis was not raised from the material. The primary judge said that that was a question of fact and that no error of law (and so no question of law for s 44 of the AAT Act) was presented. ...

...

41 However, the inability rationally to characterise the hypothesis as fanciful, etc, does not answer the inquiry for subs 120(3). As set out in East, supra at 533:

'A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved on the balance of probabilities.'"

28. In considering the application of the principles in Bull (above), it is necessary for the tribunal to look at all the material to see whether the hypothesis is fanciful, impossible, incredible, too remote or too tenuous. Miss Henderson attempted to show that the hypothesis was untenable by a combination of arguments. One of these was that the veteran's weight did not rise as the Schofield Equation predicted it would have done had he consumed as much animal fat as was suggested by Dr Lyons-Wall. Another was that Dr Lyons-Wall's methodology was flawed in that it was based on wrong assumptions about the veteran's pre-enlistment diet and incorrect assumptions about the food available to RAF men in England during World War II.

29. The respondent's use of the Schofield Equation in this case was interesting. As Miss Henderson said in submissions, "the Schofield Equation has been shown to be a useful tool in this case ... the equation is useful ... because it enables dietitians to actually do some testing or some evaluation of the reliability of the data which is given to them by surrogates and by other persons who are trying to describe a veteran's diet" (transcript, 17 October 2002, P-43). The tribunal regards this as fair comment. In cases dealing with malignant neoplasm of the prostate as a cause of death, where it is necessary to make findings or deal with hypotheses regarding the deceased's possible diet, it is useful to have an objective tool to use to ascertain whether necessarily anecdotal evidence about the type and quantity of food consumed by the deceased is at all acceptable.

30. There is another set of objective measurements in Mr Mason's case. These are his weight and BMI measures at various dates. These indicate that Mr Mason was significantly underweight when he enlisted. Anecdotal and photographic material also suggested that he was notably thin as a child and youth. Both parties addressed this by accepting that Mr Mason's pre-war fat consumption was likely to have been low. The respondent suggested 114 g a day. The applicant supported an opinion generating a corrected figure of 73 g a day. The tribunal read Mr Friderich's evidence as saying that such a low figure was possible but unlikely (see paragraph 19 above). The same applied as regards the reported intake of animal fat as related to Mr Mason's relatively moderate increase in weight during service. Mr Friderich also regarded this as unlikely, given the suggested increase in animal fat consumed. There is no dispute between the parties regarding Mr Mason's food intake after 1950. The tribunal agrees with the parties.

31. The tribunal appreciated Miss Henderson's careful and comprehensive work in assembling the material that might cast doubt on the validity of the hypothesis. So far as the tribunal's consideration of this material is concerned, the material that causes us to have the greatest doubt as to the fat intake figures in service is the fact that Mr Mason's weight rose as follows (ex R3):

* 11 September 1942 - 55.4 kg (T3/22).

* 11 October 1945 - 62.1 kg (T3/8).

* 14 March 1946 - 61.7 kg (T3/6).

While the rise appeared small in absolute terms, the rise from 1942 to 1945 represented an increase of 12% in Mr Mason's weight as it was on entry into the RAAF. On reflection, this appeared to the tribunal to be somewhat considerable.

32. The tribunal appreciated Mr Friderich's competent and confident explanation of the operation and use of the Schofield Equation. Mr Friderich did quite well in answering the tribunal's questions on the equation. However, the tribunal harbours some reservations as regards whether the equation has adequately factored in the metabolic effects on a person of his (or her) engaging in a World War II flying sortie as a pilot attached to the RAF. The tribunal agrees that the Schofield Equation is a useful tool for assessing anecdotal evidence. However, it appeared to the tribunal that there is an intensity to the combat flying experience, perhaps akin to downhill ski racing, that might justify a higher activity factor than Mr Friderich utilised in Mr Mason's case.

33. At the end of the day the tribunal considered that the hypothesis raised was justified on a consideration of all of the material before it. Despite the able efforts of Miss Henderson and Mr Friderich, the tribunal did not consider that the hypothesis raised in paragraphs 7 and 25 above was fanciful, impossible, incredible, too remote or too tenuous.

34. The tribunal considered that Mr Mason's service experience contributed to his extended period of consumption of foods high in animal fat from at least 1950 to 1976 (ex A5). The tribunal refers to and regards as applicable in the instant case the extract from paragraph 30 of Keenan (above) (see paragraph 21, bullet point 3, above) and the following extract from Keenan (above):

"58. The Tribunal considers that included in the many processes operative in the determination of dietary preference and ingestion there are factors special to war service. These are physical, psychological and emotional factors. It would be impossible to mention them all as they differ between the three services and they are different for each individual. Some of these factors include separation from normal life for periods of years; periods of panic and fear interspersed with boredom; a lack of privacy; basic camping facilities; dull and repetitive basic cooking and abstinence from and longing for favourite foods. The expert witnesses appear not to have considered these parameters, which impact on veterans in their post-war behaviour. Thus a narrow focus on the dubiously accurate levels of fat in the diet as the only factor in causing a link to an excessive fat ingestion after the war is considered inappropriate. It is particularly so in relation to this beneficial legislation, which requires reasonable certainty that a link does not exist before the claim can be rejected."

35. The tribunal finds, therefore, that the veteran's increased consumption of animal fat was related to Mr Mason's operational service.

36. Moving on to consider step four of Deledio (above), the tribunal must decide whether it is satisfied beyond reasonable doubt that the applicant's incapacity did not arise from a war-caused injury. The material introduced by Miss Henderson would appear relevant to step 4. However, for reasons already given, notably that Mr Friderich regarded the hypothesis as possible, if unlikely, the tribunal has not found step four satisfied.

CONCLUSION

37. The tribunal has found the veteran's malignant neoplasm of the prostate to have been war-caused. This means that the applicant succeeds in her application and is entitled to a War Widow Pension. The date of effect is 18 September 1995.

DECISION

38. The tribunal sets aside the decision under review and substitutes its own decision that the applicant has qualified for a War Widow Pension with effect from 18 September 1995.

I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Rear Admiral A R Horton, AO, Member

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

Associate

Date of hearing 17 October 2002

Date of decision 23 December 2002

Counsel for the applicant Mr N Dawson

Solicitor for the applicant NSW Legal Aid Commission

Counsel for the respondent Miss R M Henderson

Solicitor for the respondent DVA Advocacy Service