Polack and Repatriation Commission [2009] AATA 65 (4 February 2009)

Last Updated: 19 February 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 65

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V 200601158

VETERANS’ APPEALS DIVISION		)
	Re		GLADYS LILLIAN POLACK

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Regina Perton

Date 4 February 2009

Place Melbourne

Decision

The Tribunal affirms the decision under review.

(sgd) Regina Perton
Member

VETERANS’ ENTITLEMENTS – widow’s pension – operational service – kind of death – malignant neoplasm of the prostate – bronchopneumonia – whether Statements of Principles met – decision under review affirmed.

Veterans’ Entitlements Act 1986 ss 8(1), 120(1) and (3), 120A

Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82

Tunks v Repatriation Commission [2008] FCA 521

REASONS FOR DECISION

4 February 2009

Regina Perton

1. John Reginald Polack died on 2 August 2004 after 59 years of marriage to Gladys Lillian Polack. He was 85 years old. Mr Polack served in the Australian Army from March 1941 to December 1945. He served in the Northern Territory and New Guinea. His service is treated as operational service for the purposes of the Veterans’ Entitlements Act 1986 (the Act). The Repatriation Commission (the Commission) accepted that Mr Polack’s medical condition of bilateral sensorineural hearing loss was war-caused in June 1997. The Commission had already accepted that Mr Polack’s malaria was war-caused in the 1940s. Mr Polack did not seek recognition of any other medical condition as war-caused.
2. Mrs Polack lodged a claim for a widow’s pension on 29 September 2004 on the basis that her husband’s death from prostate cancer and pneumonia was war-caused. A delegate of the Commission determined on 5 October 2004 that Mr Polack’s death was not related to his service. On 1 February 2005 Mrs Polack lodged an application for review of the Commission’s decision with the Veterans’ Review Board (VRB). On 14 November 2006 the VRB affirmed the Commission’s decision. Mrs Polack lodged an application for review of the VRB decision with the Tribunal on 4 December 2006.
3. In considering whether Mrs Polack is eligible for a war widow’s pension, the major issues for the Tribunal to consider are:
   • What was Mr Polack’s kind of death?
   • Are there any relevant Statements of Principles?
   • Was Mr Polack’s death war-caused?

LEGISLATION

4. Section 8(1) of the Act provides:

Subject to this section ..., for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
...
(b) the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
...

5. Sections 120(1) and 120(3) of the Act are relevant to the determination as to whether the death of a veteran was war-caused. Section 120(1) of the Act provides that the veteran’s death will be war-caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Section 120(3) of the Act provides that the Tribunal will be so satisfied if, after consideration of all the material before it, the Tribunal is of the opinion that the material before it does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the person.
6. The provisions for dealing with the standard of proof in claims made on or after 1 June 1994 are found in s 120A of the Act. It provides:

(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the operational service rendered by a veteran;
...
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
...

7. The principles to be applied in cases where s 120A of the Act applies were set out by the Full Court of the Federal Court in Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 at 97-98 as a four-step process:

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.

8. The Tribunal is required to determine the kind of death, on the balance of probabilities, before it can determine whether there is an appropriate SoP and if it applies. It is not in dispute that Mr Polack rendered operational service; that he has died and that Mrs Polack is his widow.

WHAT WAS MR POLACK’S KIND OF DEATH?

9. Mr Polack’s death certificate records that he died on 2 August 2004 and that the Cause of Death and Duration of last illness were Hypostatic bronchopneumonia - days and Disseminated carcinoma prostate - years.
10. Mr Polack was first diagnosed with prostate cancer in 1981. There is no dispute that Mr Polack’s prostate cancer was a cause of his death.
11. In relation to bronchopneumonia, there was evidence before the Tribunal that pneumonia is often a condition that is a precursor to death in vulnerable individuals suffering from other terminal illnesses. In this case, the medical practitioners who provided reports and gave oral evidence, as well as both parties, were prepared to accept that hypostatic bronchopneumonia was one of the two causes of death.
12. The Tribunal finds that Mr Polack’s kind of death was due to malignant neoplasm of the prostate and hypostatic bronchopneumonia.

IS MR POLACK’S DEATH WAR-CAUSED?

PROSTATE CANCER

13. There is an SoP applicable to Mr Polack’s kind of death from prostate cancer, namely Instrument No. 28 of 2005, Malignant Neoplasm of the Prostate. Of the factors set out in paragraph 5 of the SoP that must as a minimum exist before a reasonable hypothesis can be raised connecting death from malignant neoplasm of the prostate with war service, the parties and the Tribunal concur that only one of the factors is relevant to Mr Polack, namely:

(c) increasing animal fat consumption by at least 40% and to at least 50gm/day, and maintaining these levels for at least five years within the twenty-five years before the clinical onset of malignant neoplasm of the prostate; ...

14. Both parties accept, as does the Tribunal, that Mr Polack consumed more than 50 grams of animal fat per day for at least five years within the twenty-five years before the clinical onset of malignant neoplasm of the prostate. There is, however, disagreement on whether his animal fat consumption increased by at least 40% as a result of his war service.

MR POLACK’S DIET

15. Prior to joining the army in 1941, Mr Polack was an itinerant worker in western Victoria. His work included rabbiting, timber cutting and general farm labouring. Mr Polack left home when he was 15 years old. He joined the army when he was 21 years old. Mr and Mrs Polack were married in January 1945 when Mr Polack was on a fortnight’s leave. They first met in 1939 when Mr Polack was working on properties near Mrs Polack’s parents’ dairy farm prior to his enlistment. Their courtship commenced in 1941 before his enlistment.
16. Mrs Polack described her family’s diet prior to her marriage on the basis that it would provide an insight into her late husband’s food intake. She recalled that her father would obtain a side of lamb about every fortnight and the occasional rooster was eaten. She said that meat was not a significant part of her family’s food intake. Most of what they ate was grown on the farm. Mrs Polack said that her husband would not have had much money to purchase meat or other foods and would have relied on his employers for meals. It is her belief that her husband’s diet prior to his enlistment would have been similar to hers; mainly comprised of fruit, vegetables, eggs and some meat.
17. However, under cross-examination, Mrs Polack conceded that dairy products, particularly milk, were a significant part of her diet on the farm. They made butter on the farm and had cream on the table until stopped from doing so due to war restrictions. Mrs Polack also agreed that dripping was used for cooking and as a spread. Prompted, she recalled that they sometimes ate rabbit. She conceded that she did not know how much animal fat Mr Polack ate during the pre-war period.
18. In a statement provided to the VRB in August 2006, Mrs Polack stated that Mr Polack undertook demanding physical work during the pre-war years, often from dawn to dusk. In terms of Mr Polack’s diet, she stated that it was her understanding that he would eat the same meals as his employers. She stated that it was her belief that breakfast was typically porridge with full cream milk; lunch was sandwiches of cold meat or meat and vegetables with dinner comprising roast mutton, vegetables and a sweet such as junket or boiled custard.
19. Army medical records showed that Mr Polack was about five kilograms heavier at discharge than at enlistment. Mrs Polack said that Mr Polack did look a bit fatter after the war. Following Mr Polack’s discharge, Mr and Mrs Polack initially stayed at her parents’ farm but then moved to Hamilton when they were able to rent their own house. Mrs Polack said that meat was available at butchers’ shops when they moved to Hamilton, unlike the situation at Wallacedale where her parents lived.
20. Mrs Polack said that she catered to her husband’s preference when it came to meat. Mr Polack had become keen on bully beef and other tinned meats during his army service and such products remained part of his post-war diet. After their move to Hamilton, Mr Polack worked at a flax mill for a time, a timber mill, then at a garage and then drove graders for several years. He set up his own wood merchant business in the mid 1950s.
21. Mrs Polack provided information and recipes about the meals she regularly served Mr Polack and their seven children. They included recipes for biscuits, puddings and sponges.
22. Mrs Hilda Kohlhagen, a cousin of Mr Polack’s, now in her nineties, provided a statement dated 23 April 2006. She indicated that Mr Polack was a fostered child in a poor farming family in the Wimmera. She stated that his breakfast would have been porridge with cow’s milk and sugar; lunch was sandwiches with cheese or jam fillings when working on the farm or meat and vegetables when eating at home. The evening meal would have been cold mutton and salad or vegetables followed by junket made from fresh cow’s milk or other dessert. Mrs Kohlhagen stated that Mr Polack left home when he was fifteen years old and that she did not know what specific diet he would have had after he started working on farms in the Wimmera.
23. Ernest Polack, one of Mr and Mrs Polack’s children, born in 1951, gave evidence about his recollections of his father’s diet. He recalled his father enjoying camp pie and dripping being used for cooking and spreads. They had their own cows so they had their own milk products, eaten as junket and custards. Mr Polack said that he and his mother had provided Ms Fleur Diprose, a local dietician, with information about his father’s dietary habits.
24. Two dieticians, Ms Diprose and Dr Ruth English, provided comprehensive reports and gave oral evidence. Each dietician had difficulties with the methodology used and the information relied on by the other. They disagreed in their conclusions about the levels of animal fat in Mr Polack’s pre and post war diets.
25. Ms Diprose disagreed with some of Dr English’s findings. Dr English had relied on a number of surveys undertaken during the late 1930s by the National Advisory Council on Nutrition. Ms Diprose was concerned that there was no adjustment for wastage in those surveys. In other words, she said, the levels of food ascribed to those surveyed were higher than that what was actually eaten. A figure of 122 grams of fat per day was the average in that survey. It was Ms Diprose’s view that taking wastage into account, the average diet in the survey was 110 grams of fat per day. Ms Diprose stated that she presumed that Mr Polack's diet would have had less meat intake than those dwelling in the cities and towns in the late 1930s surveys. Ms Diprose relied on the information provided by Mrs Polack’s memories of the amount of meat being limited due to insufficient availability. Ms Diprose assumed that the meat intake would have been lower in the country than in the city as there was material showing a lesser range of meats being available in rural areas. She also assumed that as an itinerant worker, Mr Polack would have had less to access to meat.
26. In terms of the service diet, Ms Diprose did not agree with Dr English’s analysis of the degree of wastage. She also suggested that Dr English had not taken account of extra food that the men might have received either from family or bought from canteens. Ms Diprose also believed that the weight gain exhibited by Mr Polack might have been due to the type of meat he had eaten during service. She described Mr Polack's activity level pre-war as moderate to heavy and his war level of activity as moderate. Ms Diprose was of the view that the majority of Mr Polack's weight gain was due to an increase in food intake rather than a decrease in activity levels.
27. Ms Diprose is an Accredited Practising Dietician with a Masters’ degree in Nutrition and Dietetics. She provided two reports, in May 2006 and June 2008. In her second report, Ms Diprose indicated that her first analysis of Mr Polack's diet was wrong, in that it underestimated the amount of fat in his post-war diet. She said she did not include dripping that was spread on toast for breakfast or allowed for sufficient dripping used in cooking. Ms Diprose said that she had also used an additional computer program in her second report to calculate the amount of fat eaten. In recalculation Ms Diprose determined that the total intake post-war was 170 grams of animal fat per day. She also stated that a figure of 110 grams of fat per day pre-war was probably an over-estimate.
28. Under cross-examination Ms Diprose agreed that she did not know what Mr Polack's diet was prior to his enlistment. She conceded her recalculation of his post-war diet increased the figure from 105 grams per day to 163 grams per day, a 50% increase. Ms Diprose said that she had omitted 40 grams of dripping on toast each day in her first calculation. Ms Diprose said her recalculations were based on additional information from Mrs Polack. She was of the view that Mr Polack's body mass index (BMI), which was 21.9 on enlistment and 23.9 on discharge, were both in the healthy range. Ms Diprose reiterated that it was her view that Mr Polack ate carbohydrates rather than animal fat for most of his calorie intake before the war. Ms Diprose said she based this comment on what Mrs Kohlhagen had said were typical foods eaten, such as cheese and jam on sandwiches. Ms Diprose conceded that she had relied on Mrs Polack's memories and her recipes to come up with a three-day diet analysis on which she based her calculations of amount of fat in Mr Polack’s diet. She said she did not know what post-war period was cited by Mrs Polack for the five year period calculation. Ms Diprose said that Mrs Polack had given her the estimates of her husband’s consumption in grams not pounds and ounces. Ms Diprose concluded that Mr Polack met the criteria for the relevant SoP.
29. Dr Ruth English is a former Chief Nutritionist, with the then Commonwealth Department of Health. Amongst her qualifications is a PhD in Nutrition and Epidemiology. Dr English provided two reports in relation to Mrs Polack’s application dated 14 June 2007 and 31 July 2008 respectively. The second report was prepared after Ms Diprose’s second report and Ms Diprose’s oral evidence. Dr English also gave oral evidence. Her reports included quotes from academics who undertook nutrition studies in the late 1930s.
30. Dr English cited a number of publications including a 1986 publication entitled A history of human nutrition in Australia by the late Professor FW Clements. Professor Clements was responsible for a 1936-38 study which considered the nutritional status of children including that of children in Victoria’s north-west. In her studies, she noted that Australia had a large surplus of farm products in the late 1930s. This led to a large number of sheep and cattle being available for slaughter, and a cheap price for meat. Dr English said that Professor Clements had pointed out that farming communities generally had more nutritious diets that those in cities. Dr English also referred to an article entitled Australians in the early twentieth century by Audrey Cahn, in a 1977 book called Tucker in Australia edited by Beverley Wood. Ms Cahn’s research on farm labourers in the 1930s indicated that meat was served three times a day. The farmhands usually ate with the family which employed them. Ms Cahn stated that in the first four decades of the twentieth century, there were plentiful supplies of beef, mutton, lamb, rabbit, wheat and other grain products. Dr English stated that Professor Clements found that 97 per cent of the rural families she surveyed had a house cow which meant that there was plenty of milk, butter and cream.
31. Dr English described her experience in dealing with issues relating to the diets of veterans who suffered from prostate cancer. She said that in the cases where veterans suffer from prostate cancer following high animal fat intake, it was dairy that contributed significantly to animal fat intake. It was Dr English’s view that Mr Polack would have had a diet reasonably high in animal fat.
32. Dr English suggested that Mr Polack would have had a reasonable diet before enlistment. She said that he was within the healthy weight range in terms of BMI when he enlisted and was noted as having grade 1 fitness. Dr English said that Mr Polack’s BMI at 22, considering the nature of his work, indicated that he was meeting his energy expenditure needs prior to enlistment. Dr English attributed Mr Polack’s weight gain between enlistment and discharge to the lower level of energy expenditure he would have had during service. She stated that Mr Polack would have had a very heavy workload when working on the farm compared to his energy expenditure in his role as a batman with responsibility for hygiene during his service. She said that given that change of activity, it is reasonable that Mr Polack would have put on weight.
33. Dr English described the phenomenon of dietary recall, whereby people find it hard to remember what they ate at a particular time. Dr English commented that unless there is an archival document that can be looked at to see what the diet was at a particular time, it is very difficult to work out what was the average intake of animal fat was at that time because people do not remember what they ate. This was further complicated by a widow discussing what was eaten by her husband at that time. Dr English stated that there are studies which show that even over a short period of time, namely days and weeks, people do not remember exactly what they ate. A further problem is to remember the quantity eaten. Dr English suggested that there was an over-reliance in Ms Diprose’s analysis on Mrs Polack’s nutritional experience on her parent’s farm.
34. Dr English described the methodology she used to determine Mr Polack’s fat consumption, which had also been used in earlier studies of World War II veterans. It included consideration of the foods available at that time, the estimate of energy expenditure and the process used in the food surveys taken prior to the war. Her calculations, which included consideration of the mean energy intake of adult males in the 1936-38 survey as well as Mr Polack’s weight and BMI, resulted in a calculation that Mr Polack consumed 15,420 kilojoules per day, which was consistent with the average of 15,123 kilojoules. Based on the studies of animal fat in diets at the time, Dr English calculated that Mr Polack’s pre-war intake was 126 grams of animal fat per day.
35. In calculating Mr Polack’s animal fat intake during service, Dr English also looked at Mr Polack’s postings, the length of time spent at those locations and the service rations at the time within those postings. She described the nature of the rations at the various locations. Dr English’s results were in her first report. She determined that Mr Polack’s animal fat intake was 113 grams per day. Dr English confirmed the findings in her report that Mr Polack’s fat intake had, in fact, lowered following his enlistment.
36. Under cross-examination, Dr English commented that wastage had been taken into account in the 1936-38 survey. Dr English reiterated her view that Mr Polack had undertaken very heavy work before enlistment and had also used his bicycle for travel and leisure and therefore had needed a high caloric intake. She disagreed with Ms Diprose’s opinion that Mr Polack’s weight gain during the war was due to a higher caloric intake. She said that the data available to her indicated a lessening in the level of Mr Polack’s activities in the army. She described Mr Polack’s weight gain over a four to five year period as relatively small, pointing out that one extra slice a day is a kilogram extra per year. She did not waiver in her opinion concerning the likely reasons for weight gain, which was primarily a change in activity level. She also maintained her view that there was a decrease in fat consumption after enlistment. Ms Polack did not agree with Ms Diprose’s comments that Mr Polack would have had a higher carbohydrate intake before the war and less from animal fats compared to his post-war diet. She also disagreed with Ms Diprose’s calculations and reporting of Mr Polack’s seasonal diets.
37. Dr English concluded that in the period before his enlistment:
    1. He was healthy, fit and in good nutritional status, as documented on his medical examination at enlistment.

2. The late veteran’s pre-service diet was adequate to supply sufficient calories/energy to meet the high demand of the labour-intensive farming and timber-felling /carrying work activities....and still present at medical examination with a BMI of 22.2 – in the upper half of the healthy weight range of 18.5 to 24.9.
...

4. There is archival and family evidence that farms were self-sufficient especially in regard to meat, milk, butter, cream and eggs in the 1930s; that workers shared meals with the farm family; and farming communities had in general more nutritious diets than non-farming families.
5. There is no evidence to support the assumption that the late Mr Polack’s pre-service diet was inferior to the average male intake of 126.0g animal fat per day recorded in the 1936-38 Survey of Household Food Budgets. Actually evidence supports the hypothesis that farming families and labourers had better quality diets than their counterparts living in the cities.
   
38. Dr English cited a study undertaken by Janine Lewis, the nutritionist in the then National Food Authority who reported on Animal fat in the Australian diet including the Armed Service’s rations in World War 2. Dr English took into account Ms Lewis’s report in calculating that Mr Polack’s average animal fat intake during his service was 113.1 grams per day. This was 12.9 grams per day less than the pre-service intake of 126 grams per day.

THE DELEDIO STEPS

39. The Tribunal has before it written and oral evidence considering whether the amount of animal fat in Mr Polack’s diet could have contributed to his death from prostate cancer. The Tribunal determines that there is material that points to a hypothesis connecting the condition with the circumstances of the particular service rendered by Mr Polack. Therefore, the first step from Deledio is satisfied.
40. As indicated earlier, there is an SoP applicable to Mr Polack’s kind of death from prostate cancer, namely Instrument No. 28 of 2005, Malignant Neoplasm of the Prostate. Therefore, the second Deledio step is satisfied.
41. Of the factors set out in paragraph 5 of the SoP that must as a minimum exist before a reasonable hypothesis can be raised connecting death from malignant neoplasm of the prostate with war service, the parties and the Tribunal concur that there is one factor relevant to Mr Polack’s service, namely:

(c) increasing animal fat consumption by at least 40% and to at least 50gm/day, and maintaining these levels for at least five years within the twenty-five years before the clinical onset of malignant neoplasm of the prostate; ...

42. Having considered all the material, including the evidence from Mrs Polack and the dieticians, the Tribunal considers that the material points to a hypothesis linking Mr Polack’s operational service with the prostate cancer, which was one of the causes of his death. The third step of Deledio is therefore satisfied.
43. In relation to the fourth step from Deledio, the Tribunal must decide whether it is satisfied that there is no sufficient ground for determining that Mr Polack’s prostate cancer was due to his operational service. It is at this stage that the Tribunal is called upon to make findings of fact. The claim will succeed unless one or more of the facts necessary to support the hypothesis is disproved or the truth of a fact inconsistent with the hypothesis is proved.
44. The Tribunal, having considered all the material before it, regards the analysis and conclusions provided by Dr English in her two reports and in her oral evidence as sound and accepts them. Her opinions on Mr Polack’s diet prior to enlistment and during service are based on her own research as well as studies undertaken during the late 1930s and afterwards by qualified experts. Ms Diprose’s opinions on the pre-service diet were primarily based on the recollections of Mrs Polack of her own diet living on her family’s farm and on the recollections of Mrs Kohlhagen, who could only provide memories of her cousin’s diet before he left home at the age of fifteen. Ms Diprose then made assumptions that the rural diet was of lesser quality than that in the city. Ms Diprose conceded that she did not have any evidence of Mr Polack’s diet prior to his enlistment. However, Dr English’s opinions were based on objective and contemporaneous material which she set out in her reports.
45. The Tribunal is satisfied, beyond reasonable doubt, that Mr Polack’s daily animal fat consumption prior to his enlistment would have been around 126 grams per day.
46. In terms of the amount of animal fat consumed during his army service, the Tribunal is satisfied, beyond reasonable doubt, that Dr English’s calculations reflect the amount consumed by Mr Polack during service. She has undertaken calculations based on the rations provided to servicemen in various postings. Ms Diprose’s initial calculations in her first report were, in fact, below the amount cited by Dr English. The Tribunal is satisfied that Mr Polack’s animal fat consumption during his war service was around 113 grams per day, which was less than his daily consumption prior to enlistment.
47. Therefore, the Tribunal is satisfied, beyond reasonable doubt, that the veteran’s consumption of animal fat, during his period of service, did not increase by at least 40% compared with the amount of animal fat consumed by him prior to service.
48. As indicated earlier, it may well be that Mr Polack’s daily consumption of animal fat after the war was higher than his consumption levels prior to, and during, enlistment. The Tribunal notes that he developed a liking for bully beef as a result of his diet during the war. However, the Tribunal is satisfied, beyond reasonable doubt, that any such increase in Mr Polack’s animal fat consumption occurred because of his personal food preferences and choices.
49. Mr Chancellor, representing Mrs Polack, suggested that the Tribunal should take account of the case of Tunks v Repatriation Commission [2008] FCA 521 where it was wrongly determined that there was no evidence about the early dietary habits of the veteran. However, in this matter, there is indeed evidence provided by Dr English which this Tribunal has determined is relevant.
50. The Tribunal is satisfied, beyond reasonable doubt, that the factual foundation of the raised hypothesis connecting Mr Polack’s malignant neoplasm of the prostate with his eligible war service is disproved. Therefore, there is no sufficient ground for determining that Mr Polack’s prostate cancer was a war-caused disease (s120(1) of the Act).

BRONCHOPNEUMONIA

51. Mrs Polack said that her husband had been a non-smoker before the war. She said he started smoking while in Darwin at the time of the air raids, which took place not long after his posting to Darwin. It was her understanding that his commanding officer had encouraged him to take up smoking to combat stress. Mrs Polack said that her husband was smoking at the time they got married and continued to smoke until the early 1980s, when he had an operation related to his prostate cancer.
52. Mrs Polack stated that her husband suffered from bronchial problems after his return from the war including frequent chest colds and production of mucus. She also stated that his handkerchiefs were frequently so soiled that she boiled them separately from the other clothes she was washing. Under cross-examination, she could not recall the frequency of his colds or whether they were more frequent than those of the children. She indicated that her husband suffered from shortness of breath intermittently during their marriage and was twice diagnosed with pleurisy. Mrs Polack recalled that her husband developed pneumonia in 2000, when it appeared that death might be imminent but he recovered after about a week in hospital. She stated that her husband was admitted to hospital about two weeks before his death suffering from shortness of breath.
53. Ernest Polack recalled his father smoking roll-your-own cigarettes. He said that he did not think his father was an excessive smoker but there were cigarettes around. Ernest Polack said he could not recall his father’s bronchial problems as a child but that he was aware of his father suffering from pneumonia in 2000. He said that his father’s condition seemed to settle down between 2000 and his death in 2004. Mr Polack recalled that his father had been put into hospital in 2004 because of a loss of calcium from his bones and a damaged shin that had become inflamed. He said that the family did not know that he had pneumonia until they were told so by the doctor after his death, as his father had been given a large amount of morphine and could not communicate with them.
54. Dr Ford, Mr Polack's treating medical practitioner, provided two reports dated 30 December 2004 and 2 July 2007 respectively. In the first report he noted that his patient had had some shortness of breath over many years. In the latter report, he stated that his patient’s 18.4 pack years of smoking would have predisposed him to developing chronic obstructive airways disease (COAD) and emphysema. However, he indicated that Mr Polack did not complain to him about symptoms relating to this presumed COAD/emphysema. He stated that it is probable that Mr Polack's previous smoking and emphysema may well have predisposed him towards pneumonia. Dr Ford stated that Mr Polack was never clinically diagnosed for COAD nor was he treated for that condition. Dr Ford stated that terminal hypostatic pneumonia is very commonly the mechanism of death in patients with advanced/ palliative malignancy. He expressed the belief that this was the case with Mr Polack and after discussion with other practitioners and family, it was decided that it would have been inappropriate and ineffective for him to receive antibiotics for this condition just before his death.
55. In his oral evidence Dr Ford agreed that chest x-rays taken in 1984 and 1989 which were reported as showing hyperinflation could be consistent with a diagnosis of COAD, despite not necessarily being related to the symptoms that Mr Polack had. Dr Ford also agreed that several other x-rays taken in 1985, 1990, 1993, 1995 and 2004 seemed to be normal in terms of Mr Polack’s lungs. Dr Ford's records also showed that Mr Polack suffered from pneumonia in 1999. Dr Ford stated that Mr Polack had been treated with steroids and antibiotics at that time and the condition had cleared up.
56. Under cross-examination Dr Ford agreed that his notes contained a number of references to respiratory infections and the like but not to COAD. Dr Ford stated that people who have COAD would usually complain of symptoms but if the symptoms were mild they may not necessarily do so. Dr Ford confirmed that Mr Polack was never diagnosed with COAD during his lifetime.
57. Dr Byron Collins, a pathologist, prepared three reports, in May 2007, September 2007 and October 2007 respectively. He also gave oral evidence. Dr Collins suggested that Mr Polack may have been suffering from mild COAD which may have pre-disposed him to pneumonia. Dr Collins stated that x-rays taken in 1984 and 1989 pointed to hyperinflation of the lungs, which is commonly seen in emphysema. He indicated that the smoking to the extent undertaken by Mr Polack could lead to an emphysema-type condition and the sort of hyperinflation seen in the 1984 and 1989 x-rays. Dr Collins also stated that recurrent colds and intermittent shortness of breath, to which Mrs Polack had referred in her evidence, could be a pointer to some underlying COAD. Dr Collins stated that COAD may have been a predisposing condition to the development of Mr Polack’s terminal bronchopneumonia. Dr Collins stated that if there was hyperinflation of the lungs, it would not be expected that the changes in the lungs would be reversed. He suggested that the later clear x-rays may have been the result of a radiologist not being asked to comment on such matters.
58. Under cross-examination, Dr Collins commented that if Mr Polack was suffering from COAD, it would have been described as being mild. He conceded that despite Ernest Polack and Mrs Polack suggesting that Mr Polack was admitted to hospital due to shortness of breath, the hospital admission documents indicated that it was because of pain, cellulitis and confusion. Dr Collins agreed that the medical notes taken during Mr Polack’s final days did not refer to respiratory problems. Dr Collins conceded that where there is serious cancer and significant deterioration in health, that pneumonia is a common mode of death, regardless of whether the person has COAD or emphysema. He also agreed that there had been no treatment for the bronchopneumonia.
59. Professor John Cade, an intensive care specialist whose original training and PhD were in respiratory medicine, provided reports in May 2007 and July 2007. He also gave oral evidence. He stated that the pneumonia suffered by Mr Polack was appropriately considered a mechanism of death. He indicated that in the medical records he had looked at there was evidence of some chronic lung disease. He said that the hyperinflation in two of the early x-rays could be consistent with COAD but that other x-rays were not. He said that the diagnosis of COAD was pretty tenuous but it had to be considered. Asked to give an opinion on why numerous later x-rays did not show the hyperinflation noted on the earlier x-rays, Professor Cade stated (page 97 of transcript):

...Well, the diagnosis of hyperinflation, it’s very non-specific. It particularly depends on how big the breath that’s been taken is. It takes a really good big breath that may look more hyper-inflated. Its absence over many years would indicate that it was a spurious early finding, or a false positive, which is perfectly possible to have false positives and false negatives on any examination. So, to me the many X-rays, which were otherwise normal took precedence over the tenuous two earlier ones.

60. Asked his opinion of the hypothesis put forward that a respiratory illness such as COAD, emphysema or chronic bronchitis predisposed Mr Polack to bronchopneumonia, his final chest infection and contributed to a hastened death, Professor Cade stated (at page 97-98 of transcript):

...It’s an important consideration, and it’s one which I looked at, and it warrants some detailed examination. However, when one looks at it in more detail, it appeared t me to be a very weak suggestion because the very diagnosis of COAD itself is in doubt. But if we put that aside to one moment and say it was there, it must have been pretty mild, and form mild COAD to cause a problem only on the last day of death, but not previously, is drawing a fairly long bow. What bother me about that suggestion was that there was no previous documented proneness to infection which you’d expect, because the pneumonia just followed his terminal illness, and because, in a terminal state, it really doesn’t matter what else there is. Death is inevitable anyhow regardless of the presence or absence of anything else however serious that might be in its own right. So for those reasons I believe that that suggestion was not, in fact, plausible.

61. Under cross-examination, Professor Cade indicated that he was not aware of the bout of pneumonia that Mr Polack had suffered in 1999. Asked about the combination of the 1999 illness with recurrent colds and mucus, Professor Cade said that colds are a viral infection of the upper respiratory tract that has nothing much to do with chronic lung disease. He noted the lack of evidence of acute bronchitis or treatment in general practitioners’ notes over the previous 20 years. Professor Cade stated that community-acquired pneumonia is a very common condition in society especially in winter and that a single episode was not significant.

THE DELEDIO STEPS

62. The Tribunal has before it written and oral evidence suggesting that Mr Polack’s kind of death from bronchopneumonia was related to his service. Mr Polack apparently started smoking during his war service. It was suggested that Mr Polack may have suffered from COAD, which arose because of his smoking habit which continued until he was diagnosed with prostate cancer in the early 1980s. The Tribunal determines that there is material that points to a hypothesis connecting the condition with the circumstances of the particular service rendered by Mr Polack. Therefore, the first step in Deledio is satisfied.
63. It was submitted that Mr Polack was suffering from undiagnosed COAD or emphysema which may have been a predisposing condition in his kind of death from bronchopneumonia. There is a relevant SoP, namely Instrument No. 30 of 2004, Chronic Bronchitis and Emphysema. The second Deledio step is therefore satisfied.
64. Of the factors set out in paragraph 5 of the SoP that must as a minimum exist before a reasonable hypothesis can be raised connecting death from chronic bronchitis and/or emphysema with war service, the parties and the Tribunal concur that there is only one factor possible relevant to Mr Polack’s service, namely:

(a) smoking at least five pack years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema; ...

65. Having considered all the material, including the evidence of Dr Ford, Dr Collins and Mrs Polack, the Tribunal considers that the material points to a hypothesis linking Mr Polack’s operational service with the bronchopneumonia, which was one of the causes of his death. The third step of Deledio is therefore satisfied.
66. In relation to the fourth step from Deledio, the Tribunal must decide whether it is satisfied that there is no sufficient ground for determining that Mr Polack’s bronchopneumonia was related to his operational service. It is at this stage that the Tribunal is called upon to make findings of fact. The claim will succeed unless one or more of the facts necessary to support the hypothesis is disproved or the truth of a fact inconsistent with the hypothesis is proved.
67. All the medical practitioners giving evidence conceded that there had been no diagnosis of COAD or emphysema during Mr Polack’s lifetime. Mr Polack did not complain to his general practitioner about any symptoms that would indicate he was suffering from COAD or emphysema. Two x-rays taken in the early 1980s showed hyperinflation of the lungs, which could be caused by those conditions. However, all the medical practitioners agreed that there was no evidence provided in five later x-ray reports of any such hyperinflation. Dr Collins suggested that this might have been due to the nature of the instructions given to the radiologists. Professor Cade commented that the hyperinflation seen in the early x-rays could be related to respiratory illness. He was not convinced that the terminal pneumonia was related to a mild form of COAD or emphysema which might not have been diagnosed. He said that the colds that Mr Polack had suffered from during his lifetime would not be related to chronic lung disease. Professor Cade concluded that it was drawing a fairly long bow to suggest that Mr Polack’s terminal pneumonia was related to a mild form of COAD, particularly when it was not diagnosed until shortly before his death.
68. The Tribunal, having considered all the material before it, regards the analysis and conclusion provided by Professor Cade as sound and accepts them. Dr Ford, Mr Polack’s treating doctor for some 20 years, did not diagnose COAD or emphysema during his lifetime. He speculated that it was possible, because of Mr Polack’s smoking habit until his diagnosis of prostate cancer, that he could suffer from those conditions in a mild form without symptoms; however, he conceded that Mr Polack did not complain of such a condition. Dr Collins also speculated along similar lines.
69. The Tribunal is satisfied, beyond reasonable doubt, that Mr Polack’s terminal bronchopneumonia did not arise as a result of his suffering from COAD or emphysema.
70. The Tribunal is satisfied, beyond reasonable doubt, that the factual foundation of the raised hypothesis connecting Mr Polack’s bronchopneumonia with his eligible war service is disproved. Therefore, there is no sufficient ground for determining that Mr Polack’s bronchopneumonia was a war-caused disease (s120(1) of the Act).

DECISION

71. The Tribunal affirms the decision under review.

I certify that the seventy-one [71] preceding paragraphs are a true copy of the reasons for the decision of Regina Perton, Member

(sgd) Mara Putnis

Clerk

Dates of hearing: 19 May 2008, 16 June 2008, 27 October 2008

Date of decision: 4 February 2009

Counsel for applicant: Mr G Chancellor

Solicitor for applicant: Williams Winter

Advocate for respondent: Mr K Rudge

Solicitor for respondent: Advocacy Section, Department of Veterans’ Affairs