Tunks and Repatriation Commission [2009] AATA 229 (6 April 2009)

Last Updated: 7 April 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 229

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2004/0732

VETERAN'S APPEALS DIVISION		)
	Re		VERONICA TUNKS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Senior Member M D Allen Dr S Toh, Member

Date 6 April 2009

Place Sydney

Decision

The Decision under review is AFFIRMED

.............[sgd].......................
M D Allen

Presiding Member

CATCHWORDS

Veterans Entitlements: Whether death of Applicant's husband was war-caused - Veteran died as a result of cancer of the prostate - alleged percentage increase of animal fat consumption inconsistent with deceased history of weight gain – pre-service dietary levels of animal fat speculative – Tribunal satisfied beyond reasonable doubt fact necessary to sustain hypothesis negatived beyond reasonable doubt.

LEGISLATION

Veterans Entitlements Act 1986. : Ss 5c, 6A, 120, 120A

CASE LAW

Repatriation Commission v Law [1981] HCA 57; (1981) 147 CLR 635

Repatriation Commission v Tuite [1993] FCA 39; (1993) 39 FCR 540

Tunks v Repatriation Commission [2008] FCA 521

REASONS FOR DECISION

Senior Member M D Allen Dr S Toh, Member

1. On 8 June 2007, the Administrative Appeals Tribunal (‘the AAT’) affirmed a decision by the Respondent that denied the Applicants claim for pension in respect of the allegedly war-caused death of her husband Kenneth Vardon Tunks, deceased. See Re Tunks and Repatriation Commission [2007] AATA 1416.
2. That decision was set aside by the Federal Court (Madgwick J) and remitted to the Tribunal to be reheard. See Tunks v Repatriation Commission [2008] FCA 521.
3. The matter came on for hearing before this Tribunal on 16 March 2009. At that hearing, the following matters were not in dispute and we find as facts:
   1. The Applicant is the lawful widow of Kenneth Vardon Tunks, deceased, a “veteran” who had “operational service” as those terms are defined in sections 5C and 6A respectively of the Veterans Entitlement Act 1986 (‘the VE Act’).
   2. The deceased died on 16 May 2002, the “kind of death” suffered by the veteran being cancer of the prostate.
   3. The clinical onset of the deceased’s prostate cancer was in 1992.
   4. The Repatriation Medical Authority has, pursuant to sections 196B and 120A of the VE Act, issued a Statement of Principle (“SoP”) relating to “Malignant Neoplasm of the Prostate” (cancer of the prostate) the Instrument No. 28 of 2005.
   5. The current Instrument, namely No. 28 of 2005, is more favourable to the Applicant than the Instrument in force at the time the Respondent made its initial decision in this matter (namely Instrument No. 84 of 1999).
4. The hypothesis put forward by the Applicant to link the death of the veteran with his war service was that although served a diet low in animal fat by his mother prior to his enlistment in the Navy during World War II, the veteran became habituated to eating fatty foods whilst in the Navy. This continued post service such that he met Factor 5(c) in Instrument No. 28 of 2005, namely “that of increasing animal fat consumption by at least 40% and to at least 50mg/day, and maintaining those levels for at least five years within the twenty-five years before the clinical onset of malignant neoplasm of the prostate.”
5. The term “animal fat” is defined in the SoP as meaning:

“ fat contained in or derived from:
(a) Meat, other flesh or offal from animals (including birds but excluding seafood);
(b) Dairy products; or
(c) Eggs from birds.”

6. At the outset we find that it is difficult to ascertain the amount of animal fat consumed by the deceased prior to enlistment. Evidence was given that eating fatty food made him bilious and that his mother, therefore, avoided giving him fatty foods. As a result, the deceased was served lean meat, boiled vegetables rather than baked, and avoided cakes, pastries and ice cream.
7. There is, however, no reliable information as to the deceased’s actual dietary intake of animal fat prior to service. As Dr English, nutritional consultant pointed out, without access to a completed dietary questionnaire for the deceased’s pre-service period, any attempt to calculate the deceased’s average annual fat intake is speculative.
8. Originally the Applicant accepted that the deceased’s pre-enlistment animal fat intake was the average for adult males, as found by the report of the Advisory Council on Nutrition 1938 following a survey conducted in 1936 – 1938, namely that of 126 grams per day.
9. The Applicant has now resiled from that position, asserting that the deceased’s animal fat intake was lower than the average for adult males. She now asserts that the deceased came within the group of 8% of Australian men who had a dietary intake of animal fat of less than 100 grams per day. While asserting that the deceased was within this 8%, no evidence was identified which supported this assertion. Similar comments apply to the assertion that the deceased’s animal fat intake was within the range of 110 – 120 grams per day.
10. At the time of his enlistment into the Royal Australian Navy (“RAN”), the deceased’s body mass index (“BMI”) was 18.7 and fell within the healthy weight range. As pointed out by Dr English, this is inconsistent with a low animal fat intake.
11. We find that the only inference that can be drawn regarding the deceased’s pre-enlistment intake of animal fats is that it was, at best, around and possibly slightly below the national average.
12. There are no facts upon which to base an estimation of average daily fat intake whilst the deceased was serving in the RAN. Quite obviously, what he ate and when, depended upon the exigencies of active service aboard one of HMA ships. We have no doubt, however, that at times the deceased was served greasy and fatty foods.
13. As an example of the type of meals offered aboard the larger naval vessels, Exhibit A7 is an extract from a history of HMAS Perth, the ship on which the deceased served. The extract refers to a breakfast of pork sausages, fried eggs and chip potatoes. This extract, however, does not mean that this was the average daily diet for sailors on HMAS Perth. And indeed the extract refers to what was apparently regarded as a special occasion. Likewise, there is no further evidence as to what the Applicant’s diet might have had been whilst posted to a shore station.
14. The Applicant’s evidence was that the deceased, post-war, insisted on having the fatty food he had come to enjoy whilst in the Navy. She went on to state that the deceased had fried eggs and sausages for breakfast, toast with plenty of butter, that he liked the fat left on chops and steak, the outside slice on roast lamb and gravy in the dish from the baked meat. He wanted apple pie or baked custard with cream or anything with chocolate or cheese in or on it. She further added that the deceased stated that he had acquired a taste for fatty food whilst in the Navy. In oral evidence the Applicant stated:

“he liked what he had been denied as a child.”

15. Based on the Applicant’s estimates of what the deceased ate post- service, as given to her by Dr English, the deceased would have consumed 187 grams of fat per day.
16. Considerable doubt attaches to the Applicants estimates of what the deceased ate post-war. Based on the original figures supplied by the Applicant, Dr English calculated the deceased’s daily energy intake. Dr English calculated that the deceased’s total energy intake was 17358kj, but calculated the deceased’s energy requirements were in the range of 11361kj to 13885kj. On these figures, the deceased would have had a weekly weight gain of 0.7kg. This weekly weight gain would increase to some 35kg per year over the post-service period. The deceased had an average weight of 70kg and, as Dr English stated in her report, it would be physiologically impossible for the deceased to gain an amount of up to 35kg in body weight each year based on his post-service diet as described by the Applicant.
17. In a report to the Applicant’s solicitor’s, dated 18 July 2005, Ms. Georgeou, dietician, stated:

“ I am in agreement with Ms Ruth English’s tools and report of analyzing Mr Kenneth Tunks pre-service, operational service and post-service food intake and eating habits and in particular, Mr Kenneth’s (sic) fat intake during these times.
Ms Ruth English did find that the Diet and Food Frequency questionnaire completed by Mrs Tunks to demonstrate over-reporting of food intake due to the cross analysis of the possibility of physiologically being able to consume the food and calories reported and the affect on the body, ie 246g animal fat per day, which would equate to an energy intake of 17,358kj per day which means Mr Tunks should have been gaining 35kg of body weight every year on his post-service diet.”

18. The Applicant explained away the inconsistency by stating in her original Statement of Facts and Contentions, paragraph 40, that although the Applicant incorrectly recalled the total amount of food her husband consumed, she did provide a reasonably accurate indication of the relative proportions eaten by the deceased. If this were so, and based on Dr English’s assessment of a maximum energy intake of 13885kj a day, the animal fat intake would be 187 grams.
19. Of the above calculations, Dr English stated on her report dated 23 March 2007:

“ I strongly disagree with the new figures provided by the Applicant for the following reasons:
* The Applicant has energy-adjusted the animal fat intake of Mr Tunks in the post-service period to meet the maximum of my estimate of the veterans energy requirement range (refer RE’s nutrition report of 24.2.05 p13). Modification of animal fat intake on the grounds of specific energy intake in kilojoules to achieve the validation to meet the criteria of a specific Statement of Principles (SoP) is scientifically invalid and unacceptable. Such an approach impinges on the validity of the criteria detailed in the SoP concerning malignant neoplasm of the prostate. Though there has been a crude energy-adjustment of 80 percent for animal fat foods and non-animal fats foods solely based on the balancing of analysed energy intake with estimated energy requirement, such an adjustment can not allow for the varying fat and energy values of the individual vegetable-based foods contributing to the energy intake of the veteran’s dietary return for the post-service period.
* Such data manipulation i.e. of adjusting dietary intake on the basis of energy intake, has been critically described as “the bumpy road of original data smoothed to the glossy finish of adjusted data” and “inappropriate”. The statistical validity of energy adjustment has been clearly defined as requiring that the composition of the diet is preserved (for example, the reported percentage of fat from individual animal fat foods and the energy from individual vegetable-based foods are retained). These measures provide a biological basis for adjusting the absolute animal fat intake. The most critical issue is whether the adjustment can preserve the composition of individual’s diet. There is no evidence that this requirement has been met in the new figure provided by the applicant.
* I strongly disagree with the use of energy-adjusted intakes of animal fat to meet the criteria of the Statement of Principles (SoP) concerning malignant neoplasm of the prostate. It is inconsistent with both the explicit wording of SoP Instrument No. 28 of 2005, and the nutrition methodology and evidence in the reference material on which the original SoP of 1996 was developed.
* Adjusted data does not enable one to monitor changes in the actual intake and does not identify what specific intake levels would confer increased risks on an individual for diet disease relationships in general.”

20. Ms. Georgeou postulated that malabsorption due to loose bowel motions could explain why the deceased did not gain weight, where as on the diet history provided he should have been gaining weight at the rate of 35kg per annum.
21. A report was obtained by both parties from Professor Duggan gastroenterologist, to address the issues raised by Ms. Georgeou. At page 3 of his report of 16 January 2007, Professor Duggan stated:

“In a normal gut, i.e. one of normal or adequate function, diarrhoea such as apparently present in Mr Tunks, does not affect fat absorption. The reason for this is that fat is absorbed in the upper small bowel, that is, in the first few meters of an approximate 6m long small bowel. The remaining several meters of a small bowel acts in a reserve capacity. This situation is analogous to the normal heart beating about 70 times per minute but with strenuous activity it can double its rate and increase the volume of blood pumped by it nearly six fold. The lower bowel; the colon/rectum, the part most associated with diarrhoea plays no role in fat absorption. Its main function is to absorb water and salt and to store temporarily its contents until evacuation.
In other words, diarrhoea is not a feasible cause of malabsorption...”

22. Professor Duggan then added:

“I note that Ms. Georgeou has raised the issue of increased energy intake by the late Mr Tunks, such as riding a bike to work and climbing up and down ladders in his work as [a] telephone technician. Whilst I accept this may have had a role in burning up his excess caloric intake, I am not persuaded that it played a major role. As for the question of malabsorption I have considered it above and the two issues are largely self contradictory. If he were malabsorbing some of his food intake, then it is extremely unlikely that he would feel well enough to pursue the active lifestyle suggested. Overall then, I am not persuaded by the arguments proposed by Ms. Georgeou of 18 July 05 and 30 January 06.”

23. Professor Duggan was asked to comment on the reports of Dr English and stated:

“I have studied these reports and find myself in broad agreement. The high claimed fat intake can only have had one of two explanations. Either there was a substantial failure to absorb some of the fat or the member would, over the years, have gained large amounts of weight.
In case one faecal loss of say 100g of the 200g of fat daily to bring the caloric intake down would entail passage of large amounts of foul smelling sloppy stools which would be expected to bring the problem to some form of attention over and beyond the broad statement of low grade diarrhoea over the years. In case two, as noted, major weight gain would have ensued.”

Professor Duggan concluded his report by opining that in the deceased’s case the claimed intact of 246 grams of fat a day was not credible.

24. In these proceedings, the Applicant maintained that based on the dietary survey, the Applicant’s estimate of the relative proportions of the different foods consumed by her husband and given that the deceased consumed in the order of 12623kj a day, the consumption of animal fats by the deceased was 179 grams per day.
25. As the Applicants recall of the total amount of food ingested by the deceased was conceded by her to be inaccurate, our view is that her recall of the relative proportions of the different foods consumed is also likely to be inaccurate. Thus the figure of 179 grams per day of ingested animal fat is no more than speculation.
26. The report of Dr English of 30 September 2008 refers to an increase in daily animal fat intake of 61 grams per day. The figure of 61 grams per day first occurred in the judgment of Madjwick J. It appears to be the difference between the figure of 126 grams per day, being the pre-war average consumption and the figure of 187 grams per day post-war by the deceased contended for by the Applicant in the original proceedings.
27. In her report of 23 March 2007, Dr English provided detailed reasons why the figure of 187 grams per day was also speculative and could not be supported on the evidence of the deceased’s actual weight. Dr English maintained, and we accept, that the adjustment from 246 to 187 grams per day was done without proper justification.
28. Similar comments apply to the attempt by the Applicant to further reduce the deceased annual fat intake to 179 grams per day.
29. Not withstanding the unreliability of the material before us we accept there may exist a reasonable hypothesis linking the death of the deceased veteran with his naval service,
30. There is material from which it could be inferred that, pre-service, the deceased’s intake of animal fat was restricted.
31. During his naval service, the deceased was at times probably served greasy and fatty foods. It is alleged that because of this, he developed a liking for foods high in animal fats. That his naval service engendered in the deceased a liking for foods high in animal fats is sufficient to establish, for the purposes of an hypothesis, that naval service caused his food preference. See Repatriation Commission v Law [1981] HCA 57; (1981) 147 CLR 635 and Repatriation Commission v Tuite [1993] FCA 39; (1993) 39 FCR 540.
32. The evidence from the Applicant and other family members is that the deceased, post service, enjoyed a diet that was high in animal fats. If one assumes as a fact that the deceased’s diet increased its animal fat content by 40% as opposed to his pre war diet, then an hypothesis exists which conforms to Factor 5(c) of the SoP.
33. As that hypothesis conforms with the SoP then, pursuant to Ss 120A(3) of the VE Act, it is deemed to be a “reasonable hypothesis” for the purposes of Ss 120(3) of the VE Act.
34. As a reasonable hypothesis exists connecting the death of the deceased with his eligible war service, Ss 120(1) of the VE Act provides that the Applicants claim is to be granted unless we are satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
35. The term beyond reasonable doubt is not capable of further elucidation, cf Green v Reg [1971] HCA 55; (1971) 126 CLR 28, although a Judge may tell a jury that fantastic and unreal possibilities ought not to be regarded as reasonable (Green supra at page 33). It is however a standard which can be met, as jury verdicts regularly attest.
36. In this matter the evidence of both Dr English and Professor Duggan cast doubt upon the factual basis of the Applicant’s hypothesis.
37. Given the deceased’s actual weight gain together with employment type and accepting, as we do, that the deceased’s activity level was properly categorised as “moderately active”, Dr English opined that it was impossible for the deceased to have a daily intake of animal fats of 246 grams or even 187 grams per day. We note that he maintained throughout his working life a healthy weight of between 64kg to 74kg. See also the report of Professor Duggin who states:

“ The claimed intake of 246 grams of fat a day was not credible.”

38. In her report of 30 September 2008, Dr English specifically addressed the question asked by Madgwick J; whether an increase of 61 grams of fat per day was impossible. If this were so then there would have been a weight gain of some 47.5 kg a year. She pointed out that over a 20 year period there had not been such a weight gain.
39. Dr English was extensively cross examined with respect to her 30 September 2008 report. At times Dr English’s replies were not entirely responsive to the questions asked of her but we are satisfied that, in part, this resulted from Dr English having given evidence in numerous similar matters and wishing to answer in the context of the wider dispute regarding dietary recall and the effects of increases in dietary fat. In this regard, attention must be had to attachment 4 to Exhibit R2 which is the direction given by a former President of this Tribunal regarding the validation of information contained in dietary questionnaires.
40. We find, however, that despite exhaustive cross examination Dr English did not resile from her opinion that the deceased’s actual weight gain post service was incompatible with an increased intake of animal fats of 61 grams per day. Had he increased his daily intake of animal fat by that amount, his weight would have been well beyond that recording
41. In these proceedings the Applicant retreated from the increased level of 61 grams per day postulated by Madgwick J. As we understand her argument, the hypothesis depended upon an animal fat intake of less than 100 grams per day pre-enlistment.
42. There is very little real evidence as opposed to speculation and conjecture as to the amount of dietary fat consumed by the deceased pre service. What is known is that upon enlistment into the navy his BMI was within normal range and as Dr English pointed out this would not have been possible if the deceased’s intake of animal fats was less than 100 grams per day.
43. We have already pointed out that the Applicant conceded that she had incorrectly recalled the food the deceased consumed. A confounding issue which only arose during the current hearing, was the Applicant’s evidence that the deceased was in the habit of consuming “a lot of beer” at a hotel after work and that his weight “did go up and down”.
44. Given the evidence of Dr English and the report of Professor Duggan together with the speculation and conjecture inherent in the Applicants case, we are satisfied that if the deceased had increased the animal fat contents of his diet to the level suggested by the Applicant then his weight would have increased well beyond that actually recorded. We are satisfied beyond reasonable doubt that the deceased did not increase the animal fat content of his diet by 40% and to 50 grams per day.
45. Being so satisfied, a fact necessary to sustain the hypothesis has been negatived beyond reasonable doubt and thus the decision under review is affirmed.
    

I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr S Toh, Member

Signed: M.Corcoran...............................................................................

Associate

Date of Hearing 16 March 2009

Date of Decision 6 April 2009

Counsel for the Applicant C. Colborne

Solicitor for the Applicant Wyatt Attorneys

Counsel for the Respondent K. Eastman

Solicitor for the Respondent Australian Government Solicitors