Tate and Repatriation Commission [2003] AATA 43 (17 January 2003)

Last Updated: 21 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 43

ADMINISTRATIVE APPEALS TRIBUNAL )

) No Q1997/689

VETERANS' APPEALS DIVISION )

Re NORMA ACACIA CECELIA TATE

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr O Rinaudo, Member

Date 17 January 2003

Place Brisbane

Decision The Tribunal affirms the decision under review.

...................(Sgd)....................

Mr O Rinaudo

Member

CATCHWORDS

VETERANS' AFFAIRS - war widows' pension - entitlement - whether veteran's death was war-caused - prostate cancer - reasonable hypothesis - whether hypothesis disproved beyond reasonable doubt

Veterans' Entitlements Act 1986

Repatriation Commission v Gorton (2001) 65 ALD 609

Byrnes v Repatriation Commission (1993) 177 CLR 564

Bushell v Repatriation Commission (1992) 175 CLR 408

Re Brown and Repatriation Commission [2000] AATA 708

REASONS FOR DECISION

17 January 2003 Mr O Rinaudo, Member

1. The applicant in this matter is the widow of George Hamilton Albert Tate ("the veteran"). On 10 August 1994, Mrs Tate lodged an application for war widow's pension, claiming that the death of her husband was service related. On 30 March 1995, the respondent rejected that claim. The Veterans' Review Board affirmed the decision on review on 13 June 1997. The applicant sought a review of the decision by this Tribunal on 15 July 1997.

2. This matter was heard on 19 March 2002 at Caloundra. The applicant was represented by Mr Harding of counsel. The respondent was represented by Ms Bowskill of counsel. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Exhibit 1), as well as the following documentary exhibits:

* Exhibit 2: Dietary Survey

* Exhibit 3: Brief Curriculum Vitae of Dr Ruth M English AO

* Exhibit 4: Report of Dr English dated August 1998

* Exhibit 5: Direction of the President of the AAT

* Exhibit 6: Two pages (pp 27-28) of report relating to Mr Tate

* Exhibit 7: Report of Dr English dated 16 January 2002, and

* Exhibit 8: Request for report from Dr English by Mr Francis dated 9 January 2002

3. The veteran, who was born on 9 May 1909, died on 26 September 1979 from prostatic cancer. He served in the Army from 2 December 1941 to 8 January 1946. He served in the South West Pacific region of the war and thus rendered "operational service" as defined in s 6 of the Veterans' Entitlements Act 1986. The applicant married the veteran on 21 May 1937.

4. The issue before the Tribunal is whether the respondent is able to disprove, beyond a reasonable doubt, the reasonable hypothesis raised by the applicant linking the veteran's death from prostatic cancer to his war service.

Legislative Framework

5. Sections 120(1) and (3) of the Veterans' Entitlements Act 1986 ("the Act") combined to require that the decision-maker apply the reasonable hypothesis test in deciding a claim under the Act. That means, in effect, that a claim in respect of injury, disease or death related to eligible service must be found to have been caused by that service unless the decision-maker is satisfied beyond reasonable doubt there is no basis for making that determination. Section 120(3) goes on to provide the decision-maker shall be taken to be satisfied beyond reasonable doubt that an injury, disease or death is service related if there is a reasonable hypothesis connecting the injury, disease or death with the service rendered by the veteran.

6. When examining whether or not a reasonable hypothesis has been made out, s 120A requires the decision-maker to have regard to the relevant Statement of Principles ("SoP") published by the Repatriation Medical Authority. In this case, SoP No 95 of 1995 (as amended by SoP No 191 of 1996) applies to claims of prostate cancer. It provides that the death of a veteran can be connected with the veteran's operational service where there is evidence of the late veteran:

"1. (a) being exposed to herbicides in Vietnam; or

(b) 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

(c) inability to obtain appropriate clinical management for malignant neoplasm of the prostate."

7. In this case, the only relevant factor is Factor 1(b).

8. On 9 November 1999, the Repatriation Medical Authority issued a new SoP (No 84 of 1999), which revoked SoP No 95 of 1995 and SoP No 191 of 1996. Factor 5(c) of that SoP is identical in wording to Factor 1(b) of SoP No 95 of 1995 (as amended by SoP No 191 of 1996) set out above. The definition of "animal fat" was revised in the new SoP, Factor 8 now defining "animal fat" as "fat contained in or derived from meat, other flesh or offal from animals (including birds), and dairy products".

9. Allsop J (with whom Emmett J agreed) in the Full Federal Court in Repatriation Commission v Gorton (2001) 65 ALD 609 said (at 623) that upon review the Tribunal must apply the SoP in force at the time of the review but - if the veteran is unsuccessful - it should then consider his or her position under the SoP that was in force at the time of the original decision. In this case the parties have agreed that a reasonable hypothesis can be established connecting the veteran's death to his war service under SoP No 84 of 1999. Therefore, it is unnecessary to consider the earlier Statements of Principle in relation to prostate cancer.

10. The hypothesis that the applicant contends exists in this case, linking the veteran's condition with his war service, is that the veteran increased his pre-service intake of animal fat by more than 40% as a result of his Army service, maintaining that level of consumption for a period of at least 20 years prior to the onset of prostate cancer. The respondent contends that, on the basis of the available expert evidence, that hypothesis cannot be said to exist. It argues that the evidence will satisfy the Tribunal, beyond reasonable doubt, that the veteran's death was not caused by his war service.

Medical Evidence

11. The Tribunal had before it a report prepared by Dr Ruth English AO entitled "Animal Fat in the Australian Diet including the Armed Services' Rations in World War 2: Scientific Review for Department of Veterans' Affairs" (Exhibit 4). Dr English also prepared reports for the Department in relation to the veteran's consumption of animal fat based on dietary questionnaires completed by the applicant and her daughter. At the hearing of this matter, the Tribunal was advised that the applicant no longer relied on the questionnaire she completed in relation to this matter.

12. Dr English reviewed the questionnaire prepared by the applicant's daughter, Ms Tate, and formed the view that the daily intake of food suggested therein would theoretically result in a weekly weight gain of 0.75 kilograms - amounting to a gain of 39 kilograms per year. However during the period 1945-1964 the veteran lost 5 kilograms. Dr English concluded, therefore, that the questionnaire should be classified as invalid.

Evidence Before the Tribunal

13. Margaret Clodagh Tate gave oral evidence before the Tribunal. Ms Tate is the only child of the applicant and the veteran. In September 2001, Ms Tate completed a dietary survey in relation to the veteran's post-war fat consumption during the period 1946 to 1964 (Exhibit 2). She stated in her evidence that the veteran regularly consumed large quantities of meat and diary products, including cooked breakfasts, and that her father used to consume milk in order to alleviate pain he was suffering from a duodenal ulcer. She stated that both her and her mother also regularly consumed meat, including cooked breakfasts, but that they had smaller servings. They also consumed mashed potatoes with their dinner, or added butter to other cooked potatoes and vegetables.

14. Ms Tate stated that despite the large amount of fat the family was consuming, only her mother gained weight. She stated that she had never gained weight, and had only commenced to gain weight in her early 50s when she started taking steroids for medical purposes. She stated that her father had also remained the same weight. She thought that the reason for this was that both her and her father had been very active people. She explained that until approximately 1970, the family didn't have a car, and they used to walk places or use public transport. She stated that after her father got the car and retired, he slowed down and wasn't as active as he had been - although he did continue to eat large meals at this time.

15. Ms Tate further stated that throughout her life people have commented to her about the heat that radiates from her body.

16. Ms Tate stated that throughout the period 1946 to 1964, she regularly ate breakfast and dinner with the veteran. She explained that her mother would pack her and her father's lunches, including a snack for morning or afternoon tea. After she left school, she stated she would sometimes help her mother with the cooking on weekends or, occasionally, she would cook a meal for the family. She said that her mother had been primarily responsible for preparing the family's meals and doing the grocery shopping.

17. Ms Tate stated that her father had been a heavy smoker, and that he had smoked throughout the period 1946 to 1964.

18. In cross-examination, the findings of Dr English, that it would have been physiologically impossible for the veteran to have consumed the food set out in her dietary questionnaire without gaining weight, were put to Ms Tate. Ms Tate did not believe that her recollection of the veteran's food consumption had been affected by the passage of over sixty years, although she admitted that she could not remember every single detail of every day during the period 1946 to 1964.

19. Dr Ruth English AO gave oral evidence before the Tribunal. Dr English has been working as a nutritionist with the Department of Veterans' Affairs, initially undertaking research into animal fat consumption pre-war, during service and post-war, and more recently in assessing dietary surveys prepared by applicants claiming that the death of a veteran from prostate cancer was war-caused. Dr English stated that, on the basis of her research, the average pre-war intake of animal fat by an adult male was 122 grams per day. During the war, if a veteran was serving in Australia, the average consumption of animal fat ranged from 95.8 to 108.4 grams. If the veteran was serving in the Pacific region (such as Mr Tate had been), the average intake was between 130.2 to 131.8 grams of animal fat. Post-war, on the basis of a dietary survey conducted in 1944, the intake of animal fat had dropped back to 122 grams.

20. Dr English explained that no further dietary surveys were undertaken in Australia until 1983. However, on the basis of statistics maintained by the Bureau of Statistics, she was able to calculate the following figures for the consumption of animal fat during the period 1938 to 1994:

Yearly Period Daily Average Intake

1938-1939 116.9 grams

1948-1949 102.5 grams

1958-1959 110.7 grams

1968-1969 97.4 grams

1978-1979 75.8 grams

1988-1989 55.2 grams

1993-1994 56.0 grams

21. In her oral evidence, Dr English confirmed that she had reviewed the dietary questionnaire completed by the veteran's daughter in this matter. In assessing the validity of that questionnaire, Dr English subjected the questionnaire to the validity checks set out in the directions of the Tribunal's former President, the Honourable Justice O'Connor, dated 10 September 1999 (Exhibit 5). When she reviewed the questionnaire, Dr English had some minor concerns about the consistency of the daily eating plan with the answers regarding food frequency. But more particularly, Dr English was concerned about inconsistencies between energy intake and the estimated energy requirements of the veteran.

22. Estimate energy requirements are a "bio-marker" used by Dr English when assessing the validity of responses in a dietary questionnaire. This "bio-marker" is an objective way of evaluating information provided by a person in relation to food consumption. Dr English explained that, by comparing an estimate of energy requirements for a person to the amount of food consumed based on the answers given to a dietary survey, a nutritionist can determine whether the person would or should have been gaining or losing weight based on their food consumption.

23. Dr English explained that, using internationally accepted standards, it is possible to estimate a person's basal metabolic rate and to then calculate their estimated energy requirements. Dr English stated that, although there were no clear results on the issue, a person's metabolic rate could be affected by smoking: if a person smokes 24 cigarettes a day their metabolic rate could increase by up to 10%.

24. Using the most favourable criteria in relation to the veteran, that is, based on a very high level of activity and having regard to his smoking habit, Dr English calculated that the veteran's estimated daily energy requirement would have been approximately 13,971 kilojoules per day. On the basis of Ms Tate's dietary questionnaire, the doctor calculated the veteran's daily energy intake as 19,575 kilojoules per day. Dr English explained that, as the human body cannot lose energy, a person who consumes more energy than they need will gain weight. Alternatively, if a person does not consume enough energy they will lose weight.

25. On the basis of these calculations, Dr English opined that the applicant would have consumed an excess of 39,228 kilojoules per week, resulting in a weight gain of 0.75 grams per week or 39 kilograms per year. As the veteran had lost weight over the relevant period, the doctor opined that the dietary questionnaire completed by the veteran's daughter was not a valid recall of the veteran's diet over the period 1946 to 1964.

26. Dr English stated that, whilst it was possible for a person's estimated energy requirements to vary within 10% of the standard, she did not believe that it was possible for a person to be able to process energy at such an extreme degree as was suggested in this case. Dr English stated that the 68% variation on the international standard suggested in this case was beyond the realms of possibility.

27. Again using criteria and assumptions highly favourable to the applicant, Dr English calculated that the veteran could have been consuming a total of 151 grams of animal fat per day as part of his estimated energy requirement of 13,971 kilojoules. That level of animal fat consumption would represent a 22.7% increase in pre-service levels of animal fat consumption. The Tribunal notes that the relevant SoP requires a 40% increase in the pre-service levels of animal fat consumption.

28. Dr English conceded in cross-examination that she had not been able to examine the veteran and therefore could not accurately state his energy expenditure levels. However, she stated that she had endeavoured to use more favourable figures when determining the veteran's estimated energy requirements, and had calculated his requirements using internationally recognised standards and procedures.

29. At the applicant's request, Dr English recalculated the veteran's energy requirements based on a weight of 66 kilograms (instead of the 62.5 utilised earlier). Dr English allowed a 10% increase in metabolic rate on the basis that the veteran had been a heavy smoker, and allowed the 10% variation as discussed in paragraph 26 above. On these calculations the veteran's estimated energy requirement would have been 17,332.15 kilojoules. The level of animal fat that could have been consumed to meet that energy requirement would have been approximately 187 grams a day, exceeding the required 40% post-service increase in animal fat consumption.

30. Dr English was asked to undertake another calculation during which she was asked to exclude the 10% increase of metabolic rate due to smoking. On this basis, Mr Tate's energy requirement was calculated as 15,756.50 kilojoules, of which his intake of animal fat would have represented a 39.6% increase from the pre-service level of animal fat consumption.

31. Dr English expressed the view that the veteran may have been more appropriately classified as having undertaken a moderate level of activity, rather than the high level upon which her calculations were based. She explained that she used the higher level for the benefit of the applicant, given that it was impossible to examine the veteran. It was suggested to Dr English that the veteran fidgeted a lot and that this may have expended quite a lot of energy. Although she conceded that fidgeting is a form of energy consumption, she considered it to be a very low level of activity and, given that she had based her calculations on the highest level of activity, his fidgeting would not have altered her findings in this case.

Consideration

32. The parties agree that a hypothesis has been raised connecting the veteran's death to his war service, as required by SoP No 84 of 1999. The issue before the Tribunal therefore is whether the Tribunal is satisfied beyond a reasonable doubt that the veteran's death was not war-caused. In Byrnes v Repatriation Commission (1993) 177 CLR 564 at 570-571, Mason CJ, Gaudron and McHugh JJ stated:

"Once a reasonable hypothesis is raised, the question for the [Tribunal] is then whether it is satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the injury is war-caused. The [Tribunal] will be so satisfied if it is satisfied beyond reasonable doubt that the factual foundation of the hypothesis has been disproved, either by proof beyond reasonable doubt that a fact or facts relied upon to support the hypothesis is not true, or by proof beyond reasonable doubt of the truth of a further fact, inconsistent with the hypothesis ...

Proof beyond reasonable doubt of a fact inconsistent with the reasonable hypothesis would, by implication, demonstrate that the 'factual foundation upon which the hypothesis can operate does not exist'." (Footnotes omitted)

33. In Bushell v Repatriation Commission (1992) 175 CLR 408, Mason CJ, Deane and McHugh JJ said:

"The [Tribunal] will be satisfied beyond reasonable doubt 'that there is no sufficient ground for making [the] determination' if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis. Thus, if the [Tribunal] is satisfied beyond reasonable doubt that it cannot accept the raised facts because of the unreliability of the material which is claimed to support them or because of the superior reliability of other parts of the material before the [Tribunal] or because the raised facts depend on inferences which the [Tribunal] is satisfied cannot be drawn, the [Tribunal] will be satisfied that there is no sufficient ground for making the determination."

34. The respondent contends that the Tribunal can be satisfied, beyond reasonable doubt, that the facts raised to support the hypothesis should not be accepted, given the unreliability of the material provided in the dietary questionnaire completed by Ms Tate, and because of the superior reliability of the expert evidence of Dr English. The respondent does not contend that the veteran's daughter was dishonest in any way, it merely argues that the questionnaire is unreliable in that it was prepared by a "third party" several decades after the events in question.

35. In contrast, the respondent argues that the evidence of Dr English is reliable in that it is based on scientific analysis and data. Her evidence does not depend upon memory. The respondent contends that Dr English was very generous in her calculations, using figures and assumptions that were particularly favourable to the applicant's case. However, even using those generous assumptions, it was submitted, the evidence demonstrates that the record of the veteran's post-war consumption of animal fat is unreliable. Therefore, the respondent contends, the facts relied upon by the applicant to support the hypothesis cannot be correct and the Tribunal should find that the death of the veteran was not caused by his war service.

36. The applicant contends that the respondent has not shown, beyond reasonable doubt, that the veteran's death was not war-caused. The applicant argues that the process adopted by Dr English for the calculation of Mr Tate's energy requirements is not exact or precise. There are a number of variables which could impact on a person's likely energy requirements, including whether they smoke and their level of activity. The applicant notes that there is disagreement amongst nutritionists as to how smoking would affect a person's basal metabolic rate and how this should be factored into any calculation of the person's estimated energy requirements. The applicant submits that, although Dr English considered it to be beyond the realms of possibility that the veteran had been consuming the amount of food outlined in the questionnaire without gaining weight, she did not consider that that was an impossibility if, when calculating the veteran's energy requirements, his average weight was taken to have been 66 kilograms rather than 62.5 kilograms.

37. For these reasons, the applicant contends that Dr English's evidence is not of superior reliability to that of the veteran's daughter.

38. The applicant concedes that the accuracy of Ms Tate's dietary questionnaire may have been affected by the passage of time, and contends that it has long been accepted that this form of dietary survey is inherently unreliable: see Re Brown and Repatriation Commission [2000] AATA 708 at pars 61-62. However, despite the fact that it is flawed, the dietary questionnaire, along with the oral evidence of Ms Tate, forms the basis of the evidence before the Tribunal and upon which it must make its decision (see Brown at par 56).

39. The Tribunal is satisfied that the evidence of Dr English is reliable. Whilst the doctor cannot state with precision the dietary energy requirements of the late veteran, she is able to refer to a body of scientific knowledge to allow her to make assumptions as to the likely energy needs of the veteran. In this case, her calculations (which have utilised assumptions that are highly favourable to the applicant) have identified the inherent unreliability of the dietary questionnaire completed by the applicant's daughter, Ms Tate. Whilst the Tribunal accepts Ms Tate as a witness of truth, the questionnaire completed by her clearly contains inaccurate statements, no doubt brought about by the passage of time and possibly by the lack of professional assistance she received when completing the survey.

40. However, it is the questionnaire completed by Ms Tate, along with her oral evidence, which forms the factual foundation upon which the hypothesis put forward by the applicant is based. The Tribunal is satisfied, beyond reasonable doubt, that the evidence of Dr English regarding the energy analysis conducted on Ms Tate's questionnaire is of superior reliability. That evidence establishes that it is beyond the realms of possibility that the veteran could have consumed the amount of food stated in the questionnaire without gaining weight. The Tribunal is satisfied beyond reasonable doubt of the accuracy of this fact.

41. Accordingly, the Tribunal is satisfied that the respondent has proved, beyond reasonable doubt, a fact which is inconsistent with the reasonable hypothesis raised by the applicant, and has, by implication, demonstrated that the "factual foundation upon which the hypothesis...operate[s] does not exist" (Bushell at pp 416 and 427).

Conclusion

42. The Tribunal affirms the decision under review.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Mr O Rinaudo, Member

Signed: Sarah Oliver

Associate

Date of Hearing 19 March 2002 (at Caloundra)

Date of Decision 17 January 2003

Counsel for the Applicant Mr A Harding

Solicitor for the Applicant Mr J Wall, Gilshenan & Luton

Counsel for the Respondent Ms H Bowskill

Solicitor for the Respondent Mr S Francis, Departmental Advocate