Fordham and Repatriation Commission [2003] AATA 60 (22 January 2003)

Last Updated: 28 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 60

ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/187

VETERANS' APPEALS DIVISION

Re: PATRICIA FORDHAM

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISION

Tribunal: Miss E.A. Shanahan, Member

Date: 22 January 2003

Place: Melbourne

Decision: The Tribunal sets aside the decision under review. The Tribunal finds that the veteran's death is war-caused within the meaning of s.8 of the Veterans' Entitlements Act 1986, and that the relevant Statement of Principles is met. The applicant is entitled to the widow's pension, with effect from 6 September 1998.

(sgd) E.A. Shanahan

Member

VETERANS' AFFAIRS - widow's pension application - whether the veteran's death due to carcinoma of prostate war-caused - reasonable hypothesis raised relating dietary change to development of carcinoma of prostate - application of Statements of Principles

Veterans' Entitlements Act 1986 ss.8, 120(1), (3), 120A

Statement of Principles

Instrument Nº 95 of 1995 as amended by Instrument Nº 191 of 1996

Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

22 January 2003 Miss E.A. Shanahan, Member

1. This is an application for a review of a decision of a delegate of the Repatriation Commission (the Commission) made on 9 September 1998, that the veteran's (Mr Lindsay Ernest Fordham) death was not war-caused. The Commission's decision was affirmed by the Veterans' Review Board (the VRB) on 22 January 2001.

2. The applicant's husband died on 23 April 1995 from disseminated carcinoma of the prostate, the terminal illness being acute renal failure.

3. The applicant was represented by Mr P. Liefman, solicitor, and the respondent was not represented. The Tribunal had before it the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (the T documents). The applicant tendered handwritten letters from the applicant and from Mrs Weston, the deceased veteran's sister, (exhibit A1) and transcript of the VRB hearing of 22 January 2001 (exhibit A2).

BACKGROUND TO THE APPLICATION

4. The late veteran was born on 4 September 1919 and died on 23 April 1995. He served in the Royal Australian Air Force (RAAF) from 5 August 1941 to 3 April 1945. As part of that service was in New Guinea, all of his service is considered operational service for the purposes of this application. The late veteran was born in the small village of Beenak, in the Baw Baw Ranges, and lived both at Beenak and Erica, in the sawmilling district, until the age of 18, when he left home to work in Melbourne. He worked as a gas metre reader and boarded with a family in Ringwood. The applicant and the late veteran were married on 1 August 1942. Following service, the late veteran was employed as a truck driver for a short period of time and then relocated to the country where he worked in a sawmill until 1951. He then obtained a job working for the State Electricity Commission (SEC). He remained an employee of the SEC until he retired. Carcinoma of the prostate was diagnosed in 1994, following which there was a rapid progression in the development of metastatic disease involving, in particular, most of the bony skeleton. Despite treatment, his condition deteriorated and he died from acute renal failure as the terminal process.

5. The applicant first applied for a widow's pension a few months after the veteran's death but was unsuccessful in her claim as it was made for a lung condition secondary to smoking cigarettes. As the veteran had died from carcinoma of the prostate, this was not relevant.

6. The current application is based on the hypothesis that dietary change in animal fat intake occurred during war service and high intake of animal fat persisted post-war service. The Repatriation Medical Authority (RMA) determined that malignant neoplasm of the prostate and death from malignant neoplasm of the prostate can be related to operational service rendered by veterans where there has been an increase in animal fat consumption by at least 40 per cent, and to at least 70 grams per day for at least 20 years before the clinical onset of malignant neoplasm of the prostate (Statement of Principles (SoP) Instrument Nº 95 of 1995 as amended by Instrument Nº 191 of 1996).

7. The applicant contended that the late veteran's dietary intake of fat increased greatly during his service and was maintained post-service and that the level of this intake meets the requirement of the SoP.

EVIDENCE BEFORE THE TRIBUNAL

8. Mrs Irena Mary Crombie gave evidence by telephone. Mrs Crombie was the elder sister of the late veteran. There had been 12 children in the family, one of whom died in childhood. Mrs Crombie had previously supplied information regarding the average pre-war diet of her family while living in Beenak and Erica. This information had been used to estimate the fat intake during this period by the dietitian, Mrs Elizabeth Simonsen. Mrs Crombie stated that they had lived a very basic life in Beenak and Erica, residing in the timber mill area where her father and elder brothers worked at the sawmill. There was no gas or electricity available, and all food was stored in a Coolgardie safe. Given the lack of refrigeration, food did not last long and could not be kept in large volumes. The Coolgardie safe was used to store butter, cheese and meat. When living at Beenak, there was a food delivery once a week. The family grew its own vegetables and a lot of the meat eaten was in the form of rabbit, trapped in the area. There was very little meat kept in the home or eaten, and meat that was available was grilled or stewed over a camp oven. When the family shifted to live in Erica, they had access to an ice chest and it was easier to shop, but the food eaten remained the same. Bread was bought rather than made at home as in the past. She said that fresh milk was never available. During the depression years, the family's financial status was poor and they were in receipt of sustenance payments. During this period, their food supply was, as she described it, "short". Mrs Crombie's statement, and outline of their pre-war diet, is contained in the T documents at pages 68 and 69.

9. The Tribunal asked the witness if, in fact, the father and brothers had worked at Morgan's sawmill in the Erica region. Mrs Crombie confirmed that this was the case. The Tribunal member will outline her knowledge of this area subsequently.

10. The applicant also gave evidence by telephone. She had met her late husband in 1941, at which time he had already enlisted in the RAAF. They were married in August 1942. She believed that her husband had been born at Beenak and shifted to the small town of Erica at approximately the age of 6. He had told her that, as a child, he had no toys and that his father worked in the sawmills. There was no electricity in their home, which was a very basic residence and they cooked on a wood fire. She believed their food was very basic and that the butcher visited once a week. Even after the shift to Erica, there were financial limitations and life was a battle. During the depression years, she believed the family was "scratching" to make a living.

11. Following the applicant's marriage to the late veteran, her husband would return to Melbourne approximately once every six weeks, when he would hitchhike home whenever leave was available. When he did visit he would eat the diet she and her mother ate, her mother doing all the cooking. The applicant affirmed her letter contained in exhibit A1. This related to the period of three to four years when the late veteran had boarded with a family in Ringwood. She had herself stayed with this family for a period of one week after her husband was posted overseas. She outlined the average menu provided by the family while she stayed with them. She believed that this would have corresponded closely to the dietary intake of the late veteran during the period 1937 to 1941. This data was used by Mrs Simonsen in her report.

12. In her evidence before the VRB, the applicant detailed the menu and dietary intake of herself and her mother during the early war years. However, as the late veteran only visited once every six weeks at the most, the Tribunal does not regard these details of relevance. The applicant also provided detail of the late veteran's diet and animal fat intake following service. Following service, the late veteran ate larger volumes of food, a great deal of fatty foods and he also ate substantial morning and afternoon teas, which usually included a piece of cake or crumpets. The late veteran would ask the applicant to leave the fat on the meat and he developed a habit of mopping up the cooking fat left in the cooking pan with a piece of bread which he would then eat (VRB trans pp.19-20).

13. The applicant also pointed out, that during the period the late veteran was boarding in Ringwood, food rationing was in force for some of that time.

14. Mrs Simonsen gave evidence by telephone. On the basis of information she had obtained from Mrs Crombie and the applicant, Mrs Simonsen had estimated the late veteran's fat intake pre- and post-war. Her estimate regarding the pre-war diet was that the late veteran's intake had been 7 grams of animal fat per day. This appears only to relate to the time he was living in Beenak and Erica. No estimate was made for the period of 3 to 4 years when he was boarding in Ringwood. On the information provided by the applicant, Mrs Simonsen had estimated the total fat content of the post-war diet as 159.6 grams. This obviously represented more than a 40 per cent increase in fat intake. Mrs Simonsen had used the data of Dr Ruth English regarding World War 2 era fat intakes and quoted the average figure as being 111.13 grams.

15. Mrs Simonsen told the Tribunal that she had worked as a dietitian for many years and provided dietary estimates for numerous veterans. In reaching her estimate she had relied on her own experience, text books up to the time of 1970, and the report of Dr English. She was of the opinion that all four questions posed in Dr English's report, which needed to be answered in the affirmative for the SoP factors to be satisfied, were met. The animal fat intake in the diet increased by at least 40 per cent; the increased intake was maintained for at least 25 years; the initial increase in animal fat consumption was attributable to service and the persistent increase over the next 20 to 25 years was also attributable to service. Mr Liefman asked the significance of the fact that the late veteran's weight only increased by 1 pound from the time he enlisted until his discharge from the Services. Mrs Simonsen did not regard that as relevant.

16. It was pointed out that the applicant had given evidence that, when the late veteran returned home on leave every six weeks or so and ate at her mother's home, he would have gravy, sweets, custard and sometimes an apple pie. Mrs Simonsen felt that taking those factors into account, even though it only occurred at six-weekly intervals, this might raise the veteran's intake to 35 grams per day. The sample diet, reported by the applicant during the late veteran's 3 to 4 years of boarding in Ringwood, was related to Mrs Simonsen who was of the opinion that it would be a low fat diet. In her opinion the initial increase in fat intake was attributable to service and she pointed out that fat in the diet seems to have an addictive effect. The VRB had spent some time in its questioning of the applicant, trying to elucidate whether the food eaten by the late veteran post-war had been determined by himself or merely provided by his wife. Mrs Simonsen had no information regarding this point.

17. Mrs Simonsen concluded that the late veteran met the requirements of the SoP with respect to the dietary intake of fat, which, in turn, attributed to the development of carcinoma of the prostate. Mrs Simonsen's report included an advisory note, number 3 of 1999, from the Disability Compensation Branch and Legal Services Group, produced by Dr English, summarised by W.R. Maxwell, Branch Head, Disability Compensation, on 28 January 1999. The late veteran's record indicates he was in New Guinea from 20 November 1942 until 4 January 1944. The advisory note refers to the daily animal fat content of Australian rations during World War 2 for those stationed in New Guinea from August 1942 to April 1943 as being 108.4 grams per day and from April 1943 to January 1944, 113.2 grams per day. This advisory note also contains a frequency distribution table of total daily intake of fat per adult males in Australia from 1936 to 1938. While approximately 95 per cent of adult males during that period had an intake of 90 to 200 grams of fat per day, a small percentage (3.75 per cent) had an intake of less than 90 grams per day. These figures would appear to have been collected by interviewing adult males in capital cities.

THE TRIBUNAL'S RECONSTRUCTION OF THE AVAILABLE DATA REGARDING

THE LATE VETERAN'S DIET INTAKE TO THE AGE OF 22, WHEN HE ENLISTED

IN THE RAAF

18. It would appear that the late veteran lived in the very small town of Beenak from the age of 1 to 6, when his family shifted to live in Erica; again, a very small town in the Baw Baw ranges. He was 1 of 12 children. His father worked in a sawmill near Mt Erica. Food deliveries occurred once a week and there was no means of keeping food longer than a couple of days in the absence of power, gas and ice.. The family relied predominantly on vegetables that they themselves grew, some meat delivered once a week and ate wild game, namely rabbits. Whole milk was never available, but apparently there was some cheese available. The availability of food, or the range of food, improved when they relocated to Erica, but according to Mrs Crombie, making ends meet was always a struggle. During the depression years, the family was in receipt of sustenance payments. The late veteran left school at the age of 14 and worked for a short period in a bakery and delivered bread. He then joined his father and older brothers working at Morgan's sawmill. At approximately the age of 18 he left home and moved to the suburbs of Melbourne where he obtained a job as a gas metre reader. During this period, he boarded with a family in Ringwood and as accurately as she can recall, the applicant has provided a typical menu of the food he would have eaten while living in Ringwood.

19. The Tribunal Member has a particular knowledge of this area of Victoria. She has also known the Morgan family since childhood and has visited these areas. The living conditions and standard of living in this sawmilling area remained extraordinarily poor and difficult into the late 1940s.

20. While the VRB and the Repatriation Commission had difficulty in accepting the late veteran's fat intake during this period of his life was of the order of seven grams, the Tribunal feels from knowledge that the fat intake would have been extremely low.

21. Mrs Simonsen did not provide an estimate of the late veteran's fat intake during the period 1937 to 1941 based upon the applicant's recollection of the diet he was provided with at that time. The Tribunal has endeavoured, from the information provided and the advised method of calculating same from Dr English's report, to estimate the fat intake during this period of time. Using the information provided to it, the Tribunal estimated the fat intake from 1937 to 1941 to be of the order of 35 to 40 grams per day.

THE RELEVANT LEGISLATION

22. Section 8 of the Veterans' Entitlements Act 1986 (the Act) sets out the circumstances in which the death of a veteran is war-caused. Section 120 of the Act relates to the standard of proof and, as the late veteran had operational service, s.120(1) and (3) are attracted, which states:

...

120(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

Note: This subsection is affected by section 120A.

...

(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a) that the injury was a war-caused injury or a defence-caused injury;

(b) that the disease was a war-caused disease or a defence-caused disease; or

(c) that the death was war-caused or defence-caused;

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

Note: This subsection is affected by section 120A.

23. As the application was lodged after 1 July 1994, s.120A is relevant. Thus the reasonableness of a hypothesis must be assessed by reference to the SoP applicable. It is agreed that the relevant SoP is Instrument Nº 95 of 1995 as amended by Instrument Nº 191 of 1996.

24. The Tribunal must decide the matter before it in stages as outlined by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82. The Full Court said, at p.97:

...

1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

The RMA has determined that the factor that must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the prostate or death from malignant neoplasm of the prostate with the circumstances of that service is factor 1(b), increasing animal fat consumption by at least 40 per cent and to at least 70 grams per day for at least 20 years before the clinical onset of malignant neoplasm of the prostate.

APPLICATION OF THE LEGISLATION TO THE EVIDENCE BEFORE THE

TRIBUNAL

25. While the passage of time has affected the memory of events in the late 1930s and 1940s by both the applicant and her sister-in-law, Mrs Crombie, the applicant's evidence raises a reasonable hypothesis that the late veteran's dietary fat intake was extremely low prior to his enlistment in the RAAF and greatly increased following service. The Tribunal relies on the report of Dr English with respect to the level of fat intake during service. Mrs Simonsen, practising dietitian in the veterans' area, has formed the opinion that the late veteran's intake was of the order of 7 grams per day prior to 1937, 111 grams during his war service and 159 per day after war service. She is also of the opinion that his high level of fat intake continued for a minimum of 25 years after service. There is a gap in Mrs Simonsen's evidence with respect to the dietary intake from 1937 to 1941. However, the Tribunal has attempted to estimate this amount based on the dietary information provided by the applicant and the Repatriation Commission's data regarding fat content of various foodstuffs. These calculations lead the Tribunal to believe that the late veteran's fat intake was of the order of 40 grams per day prior to enlistment, increased to 111 grams during service and 159 grams after service. The higher intake in the order of 159 grams per day continued for most of the late veteran's life. This is obviously a much greater increase than the 40 per cent required by the SoP factor.

26. Factor 1(b) of SoP Instrument Nº 95 of 1995 as amended by Instrument Nº 191 of 1996 is found to be satisfied and the hypothesis raised is therefore reasonable.

27. The Tribunal finds that the late veteran's death from carcinoma of the prostate was war-caused and that the applicant, his widow, is eligible for a widow's pension.

28. In this particular hearing, the Tribunal has had to avail itself of s.33(1)(c) of the Act to a greater degree than is normal in order to inform itself on any matter in such a manner as it thinks appropriate. This was necessitated by the absence of representation for the respondent.

I certify that the twenty-eight [28] preceding paragraphs are a true copy of the reasons for the decision herein of

Miss E.A. Shanahan, Member

(sgd) Catherine Thomas

Clerk

Date of Hearing 17 October 2002

Date of Decision 22 January 2003

Solicitor for the applicant Mr P. Liefman, of Peter J. Liefman

Advocate for the respondent Unrepresented