Darkin and Repatriation Commission [2002] AATA 92 (15 February 2002)

Last Updated: 28 February 2002

DECISION AND REASONS FOR DECISION [2002] AATA 92

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/1038

VETERANS APPEALS DIVISION )

Re ANNA NOREEN DARKIN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date 15 February 2002

Place Melbourne

Decision The decision under review is set aside and in substitution IT IS DECIDED that the applicant is entitled to pension.

..............................................

Senior Member

CATCHWORDS

Veterans Entitlements - Prostate cancer death - whether diet high in animal fat related to service - deceased exposed to trauma in service - discussion concerning relevance of English and Kenardy surveys - decision set aside.

Repatriation Commission v Gorton [2001] FCA 1194

Repatriation Commission v Olsen [2002] FCA 12 (29 January 2002)

Repatriation Commission v Deledio (1998) 49 ALD 193)

REASONS FOR DECISION

15 February 2002 Mr J. Handley, Senior Member

1. Mrs Darkin applies as the widow of the late Leslie Robert Darkin following decisions made by the Repatriation Commission and the Veteran's Review Board ("VRB") that the death of her husband was not related to service.

2. The claim for widow's pension was made on 4 February 1999. The Commission made its decisions on 25 February 1999 and the VRB made its decision on 13 July 2000.

3. The deceased died from prostate cancer and the relevant Statement of Principles within the assessment period were No. 191 of 1996 and number 84 of 1999. Each Instrument has an identical factor upon which the widow relies namely-

"increase in 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...".

4. Instrument No. 191 of 1996 defines animal fat as-

"...... means fat contained in or derived from

a) beef, veal, pork, mutton or lamb or offal which may be in any form, for example, main dish, sandwiches or mixed dish; in preserved meats, ham, frankfurter's, sausages, salami, bologna, deli meat items, lard and bacon; and

b) dairy products (for example; milk, cream, sour cream, sherbet or ice milk, ice-cream, yoghurt, cottage cheese, ricotta cheese, cream cheese, other cheese and butter;"

5. The definition of animal fat in Instrument No. 84 of 1999 reads as follows-

"animal fat means fat contained in or derived from meat, other flesh or offal from animals (including birds), and dairy products;"

6. In broad terms, the hypothesis advanced by Mrs Darkin was that her husband had a relatively low animal fat diet prior to service and that by reason of service, the deceased had a diet high in animal fat which continued into his civilian life after discharge.

7. Mr Darkin died on 12 January 1999. The diagnosis of the carcinoma was in 1995. It was not in dispute that the clinical onset was therefore 1995.

8. The VRB accepted that the deceased did consume in excess of 70 grams per day of animal fat for at least 20 years prior to 1994. Additionally the VRB found that the deceased did increase his animal fat consumption by 40% subsequent to discharge. The VRB affirmed the primary decision of the Commission upon the basis that it could not find a connection between the civilian diet and service.

9. Despite the findings made by the VRB and despite any review being sought by the respondent as to those findings, it put the deceased's diet in issue in these proceedings. It was submitted that the Statement of Facts and Contentions lodged by the respondent prior to the hearing were indicative that the Commission took issue with all elements of the applicant's hypothesis. It was also submitted that a hearing before the AAT is "de novo" and the applicant could not in the circumstances complain.

10. By way of background, the deceased was a member of the Royal Australian Navy between 2 April 1941 and 12 July 1946. Since some of his service was in foreign waters, the whole of his service constitutes operational service and Mrs Darkin is therefore entitled to the beneficial standard of proof.

11. Ms Bornstein appeared on behalf of the applicant and Mr Purcell on behalf of the respondent. Evidence was given by Ms Simonson and Ms Wailes on behalf of the applicant and respondent respectively. Both are consultant dieticians. A number of documents were also received into evidence and will be referred to in these reasons.

Anna Noreen Darkin.

12. Mrs Darkin said that she met the late Mr Darkin in 1946 and they were married in 1947. She was then 20 years of age and he was 24. They subsequently had four children.

13. She said that initially her husband did not speak to her about his wartime experiences but she recalled that he suffered nightmares on average once weekly in the first two years of marriage. Mrs Darkin said that this appeared to be a common occurrence amongst returned persons by reason of information that she had learnt from the wives of other returned service persons. She recalled that the nightmares were evidenced by her husband "screaming out and sort of throwing his arms about as if he was in terror". Whilst she and her husband frequently attended service reunions - which did involve some humour amongst colleagues - Mrs Darkin said that an event which did "haunt" her husband was "when the kamikazes hit, and they hit the one big gun, and all but one of those boys was killed; blown overboard or blown to pieces. He was haunted by their flesh - some of their flesh stuck on the hot steel of the ship and it was sizzling like a roast".

14. Mrs Darkin said that her husband became a leading seaman at the age of 20 and was required to exercise a great deal of responsibility. She said that he found responsibility to be a "challenge" and caused him to be "in control". Thereafter she said he developed a lifelong habit of being "in control". For example she said that when he became stressed he "wouldn't say a thing, that would be loosing control of himself. He was a great believer in the power of self-control. But there again if he was stressed or people put him out he would just, you know, prowl up and down. We used to say he was like a caged tiger". Mrs Darkin said that her husband was incapable of relaxing and he rarely sat for any length of time. She said he would "prowl up and down while he spoke"'. These personality features she said continued throughout his lifetime.

15. With respect to his service diet, Mrs Darkin said that her husband had told her that the cook on board his vessel was "lousy". She said that he and other comrades used to joke about him (the cook) and the absence of quality of food at service reunions. She recalled many occasions where Mr Darkin spoke about "pools of fat just swimming on the top (of soups and stews)". When she apparently expressed the view that she would not have eaten food of that type, Mr Darkin responded that he and others would have "gone hungry". Mr Darkin had said to her that "we just mopped up the fat with the bread, and then we ate the bread as well".

16. Subsequent to their marriage Mrs Darkin said that her husband told her of his food preferences and she recalled that he frequently ate meat and other animal products which were cooked with lard or dripping. She recalled that her husband had a preference for bacon, sausages, mince and roasted meat. He also enjoyed fried eggs. Whilst he always had cereal for breakfast with full cream milk - "because he wanted to feel that he was on a healthy diet" - he always had butter on toast as well as a cooked breakfast. She said that her husband came home for lunch and would usually eat curried savoury mince on toast, or homemade soup or sandwiches with cold lamb or scrambled eggs. An evening meal would inevitably comprise of meat, being lamb, pork or chicken, of which he would have five "big slices". He also ate roasted vegetables, usually being three roast potatoes, three pieces of pumpkin and roasted parsnip. The meat and vegetables were roasted in dripping and he always ate food left over by their children. She said that her husband did not enjoy grilled food and preferred food which was cooked or fried in fat. Additionally he would always eat the fat on lamb chops. Evening deserts were usually custards or other sweets and between meals he would eat homemade biscuits or cake which had butter as an ingredient. She said that her husband had an enormous appetite, upon which his mother commented after discharge.

17. With respect to the deceased's pre-war diet, Mrs Darkin said that her family would spend two weeks of every year with her husband's mother in suburban Melbourne and she became familiar with the dietary patterns of his family. She learnt that Mr Darkin's mother was personally frugal to ensure that good quality food was purchased. She said that the deceased's mother would purchase lean meat only despite its cost and the family also enjoyed a plentiful supply of freshly grown fruit and vegetables. Additionally, the deceased's mother would bake apple pies or rice as a desert or baked custards.

18. In cross-examination Mrs Darkin said that between 1946 and 1954 her husband did not put on weight because "he was an extremely tense, disturbed young man". Thereafter he slowly put on weight until about 1970 when he commenced to regularly exercise and was able to loose weight. Apparently Mr Darkin increased his weight to 13 stone whereas at discharge he was 9 stone 7 pounds. Mrs Darkin said that persons were commenting on her husband's weight and suggesting that he should diet and that he should "not gorge himself quite so much". She was confident that his weight increased to 13 stone because he measured it on bathroom scales at home. Nonetheless it was many years after service before the deceased started to put on weight, despite having a huge appetite in the meantime. Mrs Darkin explained that because he was so active and tense - despite his appetite - he "burned it (body fat) off". She said that her husband "could not put on weight; but then he could not relax. He ate and ate and ate but he just could not put on one pound". Despite being advised by his doctors to loose weight - because elevated cholesterol had been detected - she said that her husband did not change his diet and continued to consume large quantities of food. He eventually did loose weight but because he exercised on a regular basis. Mrs Darkin did not commence to use vegetable oils as a cooking medium until about 10 years before his death and accordingly the deceased consumed large quantities of food, roasted or fried with animal fat until the 1980's.

19. When pressed on the issue of whether the deceased did ever modify his diet or adopt a diet with low animal fat, Mrs Darkin said that despite being advised by the family doctor to reduce his food intake, she said that her husband was "addicted to food" and "food was his weakness". She said that her husband "didn't even realise how much he was eating. He sort of ate under stress". With respect to her husband's service diet, Mrs Darkin said that she could give no evidence as to quantities of food that her husband consumed however she was frequently told that the food was "pretty awful". With respect to his pre-service diet, despite Mrs Darkin not meeting him until after he was discharged from service, she said that she was familiar with his diet by reference to what she learnt from her husband's mother which was corroborated by the deceased's brother who provided a letter and which was received into evidence. She said that her husband's mother would remove fat from meat before it was cooked and served. She said that the food provided by the deceased's mother was better and more nutritious than that which was typically available to other persons - noting also that the depression had ended in 1941 when her husband enlisted.

20. With respect to her own recollection of what her husband consumed subsequent to service, Mrs Darkin said that she could "remember quite clearly what he ate".

21. In cross-examination Mrs Darkin spoke further about her husband's diet during service. She recalled that he frequently said to her that he and others were "always hungry. You were always looking for food". She understood this to have occurred because of the lifestyle on board his ship and because there was "not much to do on board a ship".

Elizabeth Simonsen

22. Mrs Simonsen was a dietician in private practice between 1975 - 2000 when she then retired. Her academic qualifications were obtained from the Emily McPherson College in Victoria and a training hospital in Perth.

23. Mrs Simonsen prepared reports dated 1 June 2000 (T-23) and 9 November 2001. Those reports were received into evidence as were other documents supplied to her with respect to the deceased's service diet.

24. In the report of 1 June 2000 Mrs Simonsen estimated the "total fat intake per day in grams" pre-war at 55.8 grams. The "total fat content" said to represent the navy diet was 299.4 grams and the "total fat content of the post-war diet" was estimated to be 296.5 grams.

25. The report of 9 November 2001 amends the earlier calculations because "animal fat only has been bought into account". Having regard to the amended calculations Mrs Simonsen calculated the pre-war diet at 49 grams of animal fat per day, the service diet of 238 grams of animal fat per day and the post war diet of 289 grams of animal fat per day.

26. Mrs Simonsen said that she estimated the animal fat content of the deceased's diet based on information supplied to her by Mr Pearson from Legacy and from a list of the foods consumed by the deceased as supplied by Mrs Darkin. She also was provided with a copy of a letter prepared by the deceased's brother who also described the pre-war diet of his family.

27. The witness said that she calculated the animal fat content from a number of publications that she annexed to the commencement of her report of 1 June 2000. She said her calculations were made manually by reference to specific foods, the cooking method and by reference also to the quantity of foods consumed. The quantities were based on an estimate made by her having regard to her prior experience as a dietician and having obtained diet histories throughout her career. Mrs Simonsen said she was familiar with computer models and programs which calculate animal fat content and which are used to calculate that content, however she said that "our skill is in testing .... what people are eating and you discuss with them what they are eating and what their serving size is and how they feel about different foods and from that you get a very good idea of what a person is eating". Mr Simonsen was familiar with the reports of Ms Wailes (who prepared reports at the request of the respondent) who relied on a computer program. She said that "it was interesting to see that a computer generated program revealed similar figures to the figures that I had worked out".

28. Mrs Simonsen said that the foods consumed by the deceased were consistent with other persons of his generation. With respect to the deceased's weight she said that in addition to the foods consumed, a persons' metabolism and whether that person exercised would be factors contributing to body weight.

29. In cross-examination Mrs Simonsen confirmed that the difference between her first report and her later report was the amended calculations taking account only of animal fats consumed. The first report calculated fat from all sources - cereal and vegetable fats were then included.

30. The witness said that she was aware of a report published by Doctor English (which was lodged by the respondent) with respect to dietary habits in Australia. Mrs Simonsen was aware that Doctor English had concluded that the total fat content in the average adult male civilian diet pre-war was between 130 and 140 grams per day of which between 114 to 130 grams was animal fat. Mrs Simonsen said that she did not know of those figures at the time she prepared her report but learnt of them later. She said that had she been aware of those figures at the time she prepared her report, she would not necessarily have taken them into account because she was concerned with the diet of one specific male person only and where she had specific evidence as to the foods consumed. Mrs Simonsen disagreed with a proposition put by Mr Purcell that she was unable to prepare her report from detailed information and that there were "large uncertainties" about the "figures" that she used to calculate the pre-war diet.

31. With respect to the service diet Mr Purcell suggested to the witness that the English report concluded, "there is no evidence that the rations available to serviceman during World War II contained excessive amounts of animal fats compared to civilian diets". Mrs Simonsen replied that she could not comprehend why the English report was being referred to because it suggests that her view should have been "adjusted". Mrs Simonsen said that she was "analysing the information that I had received and as I wasn't reading the English report and saying "should I adjust this report or not, I was just analysing".

32. With respect to the differing definitions of "animal fat" in the two applicable Statement of Principles, Mrs Simonsen said that she could see no "practical difference".

Allison Wailes

33. Ms Wailes prepared a report at the request of the respondent dated 22 August 2001 and which was received into evidence. Ms Wailes holds a Bachelor of Applied Science and Bachelor of Science from Melbourne University. She has previously worked as a clinician and in community health centres and in industry. She is presently a consultant nutritionist and dietician.

34. In her report she calculated the animal fat content of the deceased's diet before during and after World War II service. She calculated the pre-service diet as including an average of 32.1 grams of animal fat per day. The animal fat in the service diet was calculated at an average of 82 grams per day. The civilian diet between 1950 and 1960 was calculated at an average of 135.1 grams of animal fat per day and the civilian diet between 1970 and 1980 was calculated at 109.2 grams of animal fat per day. She qualified her report however because on the history provided to her the deceased's eating patterns "don't quite fit" and the "post war energy intake provides many more calories than are required to explain Mr Darkin's weight gain".

35. Mrs Wailes said she obtained a history of the deceased's diet following an interview with Mrs Darkin where food models were used to indicate the type and quantity of foods consumed.

36. Mrs Wailes said that her calculations were made by reference to the "National Dietary Survey of Adults" which concluded that 58% of total fat consumed comprised animal fats. Accordingly the total fat content (for example) of the service diet was found by her to be 141.4 grams and 58% of that sum amounted to 82 grams which is the figure that she has reported. Similar calculations were made with respect to the civilian diet.

37. With respect to the "typical" Australian Diet between "the 1970's to the 1980's" Ms Wailes said that the "typical fat intake for a person" would be between 80 and 100 grams of fat per day and from the beginning of the 1990's the "typical level of fat in the Australian diet" would be between 40 or 50 grams per day. This analysis had regard to the findings made by Ms Wailes in her report that between 1970 and 1980 the total fat consumed by the deceased was 188.2 grams per day converted (using the 58% equation) to 109.2 grams of animal fat per day. Ms Wailes concluded, having regard to the fat, protein and carbohydrate content of the foods consumed by Mr Darkin and the conversion to calories - when matched against the deceased's weight from time to time that inconsistent patterns were produced. Ms Wailes concluded that she could not regard the conclusions as to animal fat content as calculated by her to be reliable because they amounted to no more than "an estimate from a third party estimate".

38. In cross-examination Ms Wailes said that she made her calculations of animal fat by reference to the published figure of 58% of total fat content in foods being animal fat, as published by the National Dietary Survey and by calculations from her computer model. When it was suggested that the differing methodologies of calculation of animal fat might produce different results, Ms Wailes said, "they should come up with similar results". When it was suggested to her that in the case of a person who consumed a diet which was "heavily meat based, as opposed to cereal based" that the calculation of animal fats by reference to the National Dietary Survey would not be 'sound', Ms Wailes said "it would be all right".

39. When pressed on this issue Ms Wailes agreed that if a diet was entirely based on food derived from animals, calculating 58% of those foods as being animal fat would be impermissible, however she relied on this analysis in her findings because she interpreted the diet of the deceased as being "a typical mixed diet. The variety of foods in it are reasonable, they contain the cereals, the grain products, the fruit and vegetables".

40. Ms Wailes said that she was familiar with the reports published by Doctor English and acknowledged that her analysis of fat content in diet was achieved by an averaging process. She acknowledged that this process took account of diets that had a high animal fat content and diets which had a low animal fat content. She agreed that it would follow that the diet of an individual properly and individually analysed might produce an animal fat content different from the average as published by Doctor English.

41. With respect to her conclusions that the deceased's weight was inconsistent with a diet heavily concentrated with animal fat, she agreed that fat consumption may not be the sole determinant of weight and factors such as a persons metabolism and exercise would be relevant. Nonetheless she said that for Mr Darkin to achieve the weight that he did, having consumed the quantity of animal fat as alleged, he would need to be engaged in exercise activity "such as coal mining, something as energy intensive as that". She agreed that if it were accepted that Mr Darkin was a person who was "on the move, for whatever reason, might be less likely to put on the amount of weight that .... might have otherwise anticipated."

42. In re-examination Ms Wailes was asked to examine the different definitions of animal fat within the two applicable Statements of Principles. It was her opinion that the definition within the 1999 Instrument "when applied to a mixed diet would make the use of that 58% stronger". She said the 1999 Instrument was "specific" whereas the early Instrument was "general". She thought that the 1999 definition was "more favourable to the applicant".

Psychiatric Evidence

43. The applicant obtained a report from Doctor Cole and the respondent from Doctor Walton. Both are consultant psychiatrists. Both representatives agreed at the hearing that neither would call their respective witnesses but would rely on their reports.

44. Doctor Walton, in his report of 28 May 2001 concluded that the deceased was objectively exposed to incidents "which threatened to caused death or serious injury, both to himself and others". Subjectively he was unsure as to the applicant's reaction, however he was satisfied, on the balance of probabilities, that the applicant would have been affected as evidenced by his nightmares and by him speaking to his wife about "being haunted by the smell of burning human flesh". It was his opinion however that the deceased did not suffer post traumatic stress disorder and on balance did not suffer from a generalised anxiety disorder.

45. With respect to the deceased's diet, Doctor Walton was of the opinion that anxious persons are more likely to suffer a loss of appetite and weight loss whereas "comfort eating" is usually observed in persons who are depressed and those persons have a tendency towards foods rich in carbohydrates rather than fat. Additionally in his experience, persons consume food of that type episodically rather than by sustained consumption. He concluded, based on the history obtained from Mrs Darkin, that the deceased "simply enjoyed the diet he choose rather than that being driven by any psycho pathological phenomenon".

46. Doctor Walton noted that his opinions are necessarily qualified-

"by stating the obvious that I am somewhat hampered in terms of deriving detailed information simply because of the absence of the veteran. In my relatively limited experience of assessing these cases, where the principle living provider of information is a veterans widow, Mrs Darkin impresses as having been more observant than most and I believe that she is a credible history giver. At least in this case apparently in his later years of life the veteran did become more forthcoming about his war-experiences but that is a limited substitute to questioning him directly".

47. Doctor Cole in his report of 13 November 2000 concluded that the deceased probably did suffer "from a post traumatic stress disorder although the information is not complete enough to make a confident diagnosis in terms of the Statement of Principles". He was of the opinion that at least the deceased did suffer from a chronic generalised anxiety disorder as a result of wartime experiences and "he was at pains to disguise it as much as possible".

48. With respect to the diet of the deceased Doctor Cole concluded-

"Mr Darkin did not eat a high fat diet before he enlisted but had little choice about eating such a diet afterwards. In the five years that he spent in the Navy his appetite increased and he developed a fondness for fats, a fondness which he continued to indulge after his discharge. I don't think one could dispute the fact that his diet after the war was a matter of personal choice but it was a matter of choice conditioned by his diet during the war. .... I would add that it is by no means uncommon for tense anxious people with obsessional temperament to seek solace in food and eat compulsively and so I believe that his chronic generalised anxiety disorder helped drive his dietary habits".

Conclusion & Reasons For Decision

49. The enquiry in the present application as to which Statement of Principle applied concerned the altered definition of 'animal fat' that existed in Instrument No. 84 of 1999 and Instrument No. 191 of 1996 (refer paragraphs 4 & 5 earlier). The representatives of the parties in their written submissions (applicant at paragraph 19 and respondent at paragraph 25) submitted that the definition of 'animal fat' at Instrument No. 84 of 1999 was 'broader' and more 'favourable' to the applicant. Both representatives specifically referred to the Full Court decision in Repatriation Commission v Gorton [2001] FCA 1194, decided on 29 August 2001. The Court did not then use the word 'favourable' when deciding which or whether a Statement of Principle applied. The court spoke in terms of determining the reasonableness of a hypothesis 'in force' and whether that Statement of Principle "upholds" the hypothesis advanced. It also spoke in terms of 'accrued rights'. More recently Stone J, in Repatriation Commission v Olsen [2002] FCA 12 (29 January 2002) decided that an applicant before this Tribunal is entitled to a pension by reference to either Statement of Principles (within the assessment period). His Honour decided that this was so 'irrespective of which SoP is more advantageous' although where one SoP is clearly more advantageous the applicant may choose not to rely on the other. Significantly His Honour concluded 'it should be stressed that this is not a matter of election on the part of an applicant but a matter of entitlement'.

50. In evidence, Ms Simonsen thought that there was no 'practical difference' between both definitions of 'animal fat'. Ms Wailes thought that the latter definition was 'more favourable' to the applicant. She was of this opinion because she thought that the latter definition 'allows more products to be included that are not excluded by the definition of the individual products'. I understood this to mean that she thought that the latter definition was unrestricted as to what products containing animal fat could be captured by the latter definition whereas the former definition was more specific because of its identification or specific food types.

51. For my part I think there is little practical definition between both definitions. Certainly the latter Instrument is broad and relatively unrestricted as to what food types might be included within the definition of being food types with contain 'animal fat'. The specific food types referred to in the former definition are included by way as 'example' only and are not restricted to those food types. Probably the difference of some significance between both definitions is that the latter includes animal fat deriving from 'birds' which was not within the former definition.

52. The issue of real significance in this application was whether the deceased increased his animal fat consumption by at least 40% and then to at least 70 grams per day for at least 20 years before the clinical onset of the prostate cancer. The parties did not dispute that the clinical onset was in 1995 and having regard to the medical reports filed and the records of the clinicians I agree with this concession.

53. In Repatriation Commission v Deledio (1998) 49 ALD 193 at 206) the Full Court concluded by identifying four stages of enquiry. The respondent concedes that there is material pointing to a hypothesis connecting the deceased's death with his service, that an applicable Statement of Principle applies and the applicable factor is 5(c). These concessions are well founded and it follows (as I would have decided in any event) that the first and second stages of the Deledio analysis have been satisfied.

54. The enquiry then shifts to an analysis of stages 3 and 4.

55. The respondent relied on the reports of Dr English - and to a lesser extent Dr Kenardy - which have been used extensively by the Commission in many other applications before this Tribunal where pre and post service diet is in issue. The evidence of Dr Simonsen was sought to be diluted because the analysis by her of the animal fat content of the foods consumed by the deceased were at considerable variance with the published figures of Dr English. Ms Simonsen said she became aware of the report of Dr English after she had completed her reports with respect to the diet of the deceased in the present application and did not feel that she should have to 'adjust' her conclusions having regard to the published findings of Dr English. Additionally Ms Simonsen rejected a suggestion that her calculations as to animal fat and the foods consumed by the deceased were unreliable because of 'large uncertainties' and because the quantity of foods analysed by her was 'speculative'.

56. The persisting use by the respondent with the reports of Dr English can have no value other than to provide a broad guide to the animal fat content of diets within the Australian community before, during and subsequent to World War II. The analysis is necessarily not specific because it amounts to findings from a survey of many diets. In fairness, it is also open to the same attack as was made upon Mrs Darkin, that is, the respondents to the English survey provided information to the best of their memory.

57. The present application concerns the diet of Mr Darkin only. That he may have had a diet different to the published average diet relied upon by Dr English is largely the reason that this application is in dispute. The review sought by Mrs Darkin necessarily compels an examination of his diet only and whether the hypothesis raised by her is consistent with the template found within the applicable Statement of Principle.

58. The memory of Mrs Darkin was put in issue, yet I found her to be a credible, honest witness, who did not seek to exaggerate or embellish her evidence. She was rigid in her evidence of ability to recall the foods that she served her husband and the foods that he consumed. Her recall extended also to quantities of food. Whilst she was not interviewed by Ms Simonsen, she infact was interviewed by Dr Wailes, who formed an opinion of the type and quantities of food consumed by the deceased based on food modelling. I note Dr Walton also found her to be "more observant than most" and a "credible history giver".

59. Dr Simonsen relied on her experience as a dietician when assessing the quantities of foods consumed by the deceased and calculated the animal fat content by reference to certain printed data that she held. Dr Wailes relied on computer modelling and other data and then made calculations of the animal fat content (in order to reconcile her findings) by reference to the National Dietary Survey of adults. She said that both methods of analysis produced similar figures. She was uncomfortable however with her conclusions having regard to the deceased's weight, certain observations as to calories and reliance upon a third party (the applicant).

60. Despite the specific reference in the Statement of Principles to increased animal fat consumption by 40% and then to 70 grams per day, there will surely not ever be an application where there is specific firm evidence as to the foods consumed, the quantity of foods consumed and the quantity of animal fats within those foods. At best - no less in veterans' applications where an analysis of diet is often made up to 50 years after service - the best that can be achieved is an analysis based on the description of foods and the estimate of quantities consumed.

61. Where there is evidence of diet before, during and subsequent to service and where the food comprising that diet is capable of analysis, it would be most unfair to dismiss an application because the evidence is tenuous or remote and amounts to no more than mere possibility.

62. Mrs Darkin explained on a number of occasions that her recall of the deceased's diet was good, both as to the foods consumed and the quantities. On a number of occasions throughout her evidence and in her statement filed prior to the commencement of proceedings she was consistent and I believe credible. She referred on a number of occasions to the significant quantities of food consumed by her husband and drew reference also to the observations made on a number of occasions by the deceased's mother who was apparently astounded by the quantities of food consumed by the deceased after he was discharged (compared to the quantities of food consumed prior to enlistment). Additionally, the cooking method - dripping - was a feature also of the meals prepared by Mrs Darkin for her husband in addition to many other foods which contain high quantities of animal fat.

63. Although it is acknowledged that the specific foods consumed by the deceased prior to service were not identified, it would appear from the evidence of Mrs Darkin with respect to the many conversations she had with the deceased's mother, that food high in animal fat prior to enlistment was not a feature of the deceased's diet. Indeed it would appear that there was a plentiful supply of fresh fruit and vegetables and meat when consumed, was lean. There was no evidence at all of the deceased having a diet prior to enlistment anywhere near that which he had during enlistment or as a civilian after discharge. Despite the imperfections in the animal fat analysis completed by Dr Simonsen and Dr Wailes, their respective conclusions would bear testament to the above.

64. Ms Simonsen analysed the deceased's diet before service, during service and after service as containing 49, 238 and 289 grams of animal fat respectively. Ms Wailes estimated the consumption before and during service as 32.1 and 82 grams respectively. With respect to his consumption after discharge she made an analysis at two different periods being 1950 to 1960 and 1970 to 1980. With respect to those two latter periods she estimated the animal fat consumption at 135.1 and 109.2 grams respectively.

65. Even if Dr Simonsen's analysis was disregarded totally on the estimates prepared by Ms Wailes - which I do not necessarily accept as being properly based (because I thought her analysis was confusing and reliant also on published figures from surveys), the deceased did infact increase his animal fat consumption by 40% and then to at least 70 grams per day as those features are found within the Statement of Principles. Even if Dr Simonsen's analysis of the pre-service, animal fat consumption was doubled and her analysis of the post service animal fat consumption was halved, the applicant would still achieve a finding of her husband having increased his animal fat consumption by at least 40% to at least 70 grams per day.

66. The respondent also pointed to the deceased's body weight from time to time as an indicator either that animal fat consumption was at a relatively low quantity (because of minimal weight gain following service) and "gradual" weight gain later after service as a natural occurrence. The evidence as to weight was that the deceased was eight stone seven pound on enlistment and increased to nine stone seven pound at discharge. During this period the applicant grew in height almost by two inches. Towards the end of the 1960's his weight exceeded 12 stone. In evidence Mrs Darkin said that despite the quantity of food consumed by her husband - at one stage in her evidence she said that he would "gorge himself" - she said that her husband was incapable of putting on weight because he was tense, disturbed, and forever restless she said he was incapable of relaxing and "he ate and ate and ate but he just could not put on one pound". Later when his weight became excessive and he was warned by his doctors to diet in fear of health complications, the deceased apparently was incapable of reducing his food intake but did commence exercise on a regular basis. Both Ms Simonsen and Ms Wales agreed that a person's metabolism and exercise contributed to body weight and in these circumstances I am not satisfied that the relative modest weight gain during service and the deceased's weight having exceeded 12 stone more than 20 years after service are indicators that he consumed quantities of food less than the evidence of Mrs Darkin, and then containing animal fat in content also less than her evidence suggested.

67. With respect to the relationship between service and the increased consumption of animal fat, it would appear from the evidence that the deceased was exposed to some horrific and frightening experiences as a member of the navy. Mrs Darkin used the word "haunt" to describe her husband's reaction to some events from service and she also recalled descriptions given to her by her husband of comrade being "killed, blown overboard or blown to pieces" and human flesh "sizzling like a roast" after one of his vessels was struck in a kamikaze attack. Mrs Darkin recalled her husband being forever restless and "prowling" and being observed to be "like a caged tiger". She recalled that he suffered nightmares and despite enjoying the comraderie of former service persons at reunions he also became visibly upset at the memory of lost comrades.

68. Doctors Walton and Cole gave differing opinions as to the relationship between service and food consumption however this analysis does not involve selection of one opinion over the other, but rather whether a reasonable hypothesis of connection exists. On the report of Dr Cole such a hypothesis does exist.

69. In conclusion - and this almost goes without saying - the Veterans Entitlements Act is to be interpreted beneficially and without rigid or technical application of the rules of evidence. It is a regime intended to benefit veterans and their families as a consequence of injury or death from war-caused service. It is inherent with the passage of time, the imperfections of memory, the absence of witnesses, records and documents and the absence of any expectation that in the 1940's persons would be called on to give evidence some 50 or 60 years later that proof is not a pre-requisite to founding a reasonable hypothesis but rather whether there is material which points to such a hypothesis.

70. All things considered and having regard to the totality of the evidence in the present application, I am satisfied that the hypothesis advanced by Mrs Darkin does fit the template found within the Statement of Principle and as such that hypothesis is "reasonable". On the material raised by these proceedings, I am satisfied that the applicable factors under the Statement of Principles existing within the assessment period have been satisfied as a minimum and are related to the deceased's service.

71. It follows therefore that the third of the Deledio stages has been met.

72. I am not satisfied that the fourth stage of the Deledio analysis has been satisfied by the respondent. I am therefore satisfied that there is no sufficient basis to determine on the probabilities that the veteran's death was not war-caused. It follows and I find that the death was war-caused.

73. In all of the circumstances the decision under review should be set aside and in substitution it is decided that the death of the late Leslie Robert Darkin was war-caused.

I certify that the 73 preceding paragraphs are a true copy ofthe reasons for the decision herein of Mr J. Handley, Senior Member

Signed: ....................M.Dimovski.................................................

Associate

Date/s of Hearing 20 November 2001

Date of Decision 15 February 2002

Counsel for the Applicant Ms Bornstein

Solicitor for the Applicant Williams Winter & Higgs

Counsel for the Respondent Mr Purcell