Glanville and Repatriation Commission [2009] AATA 759 (2 October 2009)

Last Updated: 2 October 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 759

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2004/1632

VETERANS’ APPEALS DIVISION		)
	Re		CATHERINE GLANVILLE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Ms N Bell, Senior Member and Dr J Campbell, Member

Date 2 October 2009

Place Sydney

Decision

The Tribunal sets aside the decision under review and decides instead that Mr Glanville’s death was caused by his operational service and the claim for war widow’s pension made by Mrs Glanville should be granted. The date of effect of this decision is 3 February 2004.

..................sgd............................
Ms N Bell, Presiding Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – Claim for war widow’s pension - Operational Service – Claim for Malignant Neoplasm of the Prostate - whether war-caused - whether there is a reasonable hypothesis connecting condition with relevant service - consideration of Statement of Principles - Increase in animal fat consumption – the Decision under Review is Set Aside and substituted - Malignant Neoplasm of the Prostate is War-Caused.

Veterans’ Entitlements Act 1986 (Cth)

Statement of Principles concerning Malignant Neoplasm of the Prostate – Instrument No. 28 of 2005 and No. 84 of 1999 as amended by No. 69 of 2002.

Dunn v Repatriation Commission [2006] FCA 1703

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

Repatriation Commission v Gorton [2001] FCA 1194

Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564

Repatriation Commission v O’Brien [1985] HCA 10; (1985) 155 CLR 422

Burns v Repatriation Commission 2008 AATA 1078

REASONS FOR DECISION

2 October 2009

Ms N Bell, Senior Member

1. Mrs Catherine Glanville is the widow of the late Mr Keith Glanville who died on 30 January 2004. Mr Glanville served in the Australian Army from 20 January 1943 to 2 October 1946 in Queensland, Victoria, New South Wales and in the Pacific Islands including, Morotai and Tarakan. There is no dispute that the whole of his service constitutes operational service within the meaning of the Veterans’ Entitlements Act 1986 (the Act). There is also no dispute that Mr Glanville’s cause of death (or “kind of death”) was carcinoma of the prostate.
2. Mrs Glanville contends that her late husband’s carcinoma of the prostate was caused by his operational service. The Repatriation Commission maintains it was not.

ISSUES

3. There is no dispute that Mr Glanville’s death was caused by carcinoma of the prostate. This conclusion is supported by the death certificate and by relevant clinical notes.
4. It remains for us to consider whether that condition was war-caused. In doing so we must apply the standard of reasonable hypothesis, in this case, by identifying the applicable Statement of Principles (SoP) and considering whether any hypothesis raised by the material before us conforms with one of the factors in the SoP. If so, then we must consider whether we are satisfied, beyond reasonable doubt, that the condition is not war-caused.
5. In so doing we will follow the steps set out in Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82.
6. Mrs Glanville relies on the SoPs concerning Malignant Neoplasm of the Prostate. Given the date of Mr Glanville’s death, Mrs Glanville’s claim for pension and the dates of the SoPs concerning the condition that caused Mr Glanville’s death, two potentially relevant SoPs are identified: No. 84 of 1999 as amended by No. 69 of 2002, and No. 28 of 2005. In each SoP, Mrs Glanville relies on factor 5(c):

SoP No. 84 of 1999
5(c) - 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.

SoP No. 28 of 2005
5(c) – increasing animal fat consumption by at least 40% and to at least 50 gm/day, and maintaining these levels for at least five years within the twenty-five years before the clinical onset of the malignant neoplasm of the prostate.

7. Therefore the following issues arise for consideration:

i) Did Mr Glanville increase his animal fat consumption to the required degree and for the required period of time under either the current SoP or the SoP in force at the time of his claim?

ii) If so, was that increase connected to his operational service?

iii) If so, are we satisfied, beyond reasonable doubt, that the condition is not war-caused?

8. We note that, in accordance with the standard of reasonable hypothesis, we must not engage in fact finding in relation to the first two questions. Rather, we must consider whether there is material before us that points to positive answers to these questions.

DID MR GLANVILLE INCREASE HIS ANIMAL FAT CONSUMPTION TO THE REQUIRED DEGREE AND FOR THE REQUIRED PERIOD OF TIME?

9. During the hearing, it became clear that both Mrs Glanville and the Repatriation Commission agree that this question should be answered in the positive. According to the two dietitians’ who gave evidence before us, Mr Glanville met the risk factor in both its incarnations. There is no controversy about this, although Dr English, was of the view that the results of the dietary questionnaire which formed the basis of the dietitians’ opinions were invalid. This a matter to be considered in relation to section 120(1) of the Act, that is, the question of whether we may be satisfied, beyond reasonable doubt, that the condition is not war-caused.
10. Whether Mrs Glanville exercises her accrued right to have the earlier SoP applied to her claim (Repatriation Commission v Gorton [2001] FCA 1194), or whether the current SoP is applied, we find this aspect of a reasonable hypothesis, according to the amounts and periods of time requirements of the SoPs, has been raised by her and is pointed to by the material before us.

WAS THE INCREASE IN FAT CONSUMPTION CONNECTED TO MR GLANVILLE’S SERVICE?

11. The Repatriation Commission referred us to the judgment of the Federal Court in Dunn v Repatriation Commission [2006] FCA 1703. This judgment, it was submitted, stands for the proposition that without material pointing to the connection between hypothesised events and the veteran’s service, there can be no reasonable hypothesis.
12. Dr Volker, Consultant Dietitian, said that Mr Glanville, during his service, was on Army rations and, when one looks at the list of Army rations, he would have eaten tinned food, it would have been cold and it would have been bland and boring. Dr Volker said that when a person experiences food of that kind under frightening conditions, it is reasonable to assume that the person will not eat that kind of food again when he leaves the theatre of war. She considered that Mr Glanville would have wanted flavoursome food, Mrs Glanville provided it and flavoursome food in those days was food containing a fair amount of animal fat. Dr Volker said she based her view of the kind of food that would have been consumed by Mr Glanville in the theatre of war on a historian’s reports and on having visited the location at which rations were formulated and tested. She said she is aware of how much work has been done on the food since those days.
13. Mrs Glanville gave evidence of her attempts to make her husband decrease his fat intake after he was advised to do so by his doctors in 1993. She said he would not stick to a diet that had less butter, cream, and other fatty foods. She said he was very hard to manage because he liked “the old regular food he was used to eating” and wouldn’t change his eating habits even though he knew he should.
14. It seems to us that a hypothesis of connection to service is raised by this material. The material points to a hypothesis that, in addition to conforming to the increases in animal fat consumption set out in factors 5(c) of the SoPs, during the frightening conditions of service Mr Glanville had only boring and bland food; as a result, he rejected that kind of food after leaving the theatre of war and desired instead flavoursome food which meant, in those days, food containing a high level of animal fat; he continued to demand and consume such food notwithstanding Mrs Glanville’s attempts to decrease the amount of fat in his diet and would not change that established habit.
15. We note that this hypothesis is necessarily raised in the absence of any evidence from the late veteran himself. We also note that Dr Volker’s opinion relies on the assumption that Mr Glanville rejected bland food after he left service. An assumption not sufficient to make a hypothesis unreasonable (Byrnes v Repatriation Commission [1993] HCA 51; (1993) 177 CLR 564).
16. We also note that Dr Volker is an experienced dietitian, with a history of work in the area of veterans’ entitlements. The assumption made by her is based on her knowledge of army rations. She stated her assumption about Mr Glanville’s reaction to that diet, after the conclusion of his service, as an expert dietitian. There was no material before us to contradict her opinion.
17. On this basis, we consider that there is before us material, not fanciful (Repatriation Commission v O’Brien [1985] HCA 10; (1985) 155 CLR 422), that points to the hypothesis of the connection between the events that conform with the relevant SoPs and Mr Glanville’s service. It may reasonably be hypothesised that Mr Glanville’s operational service contributed in a material degree to his consumption of fat at the levels and for the periods required by each of the SoPs.

ARE WE SATISFIED, BEYOND REASONABLE DOUBT, THAT THE CONDITION IS NOT WAR - CAUSED?

18. Drs English and Volker were in disagreement in relation to a number of matters, including Mr Glanville’s weight at certain times, his daily eating pattern and food frequency record and the correct application of a set of predictive equations referred to as the “Schofield Equations”. Dr English considered, in particular, that the answers to the questionnaires were “invalid”.
19. A differently constituted Tribunal, over which one member of the present Tribunal presided, reached the following conclusion in relation to the evidence of Drs English and Volker on a similar point:

We note the objections and doubts raised by Dr English as to the validity of the questionnaire answers. In contrast, the report ... of Dr Volker, Consultant Dietitian, accepts the answers as plausible. It is unnecessary to air the habitual contest between these two experts. The reasonableness of the hypothesis will not be disproved by either one of their opinions. There are variables in the equations that are applied to estimate increases in fat consumption: differences in metabolic rate, differences in exercise levels, and the effects of illnesses. The different ways in which different experts incorporate these variables into their calculations, and the different formulae used by them, mean that the opinion of just one expert dietician, in opposition to that of another, does not serve to disprove, beyond reasonable doubt, a reasonable hypothesis. (Burns v Repatriation Commission 2008 AATA 1078)

20. We adopt the same conclusion here.

DECISION

21. The decision under review is set aside. Instead the Tribunal decides that Mr Glanville’s death was caused by his operational service and the claim for war widow’s pension made by Mrs Glanville should be granted. The date of effect of this decision is 3 February 2004.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Snr Member Bell:

Signed: ........................sgd..........................................................

Felicia Daniele: Associate

Date/s of Hearing 4 August 2006; 20 May 2008; 21 May 2008 and 9 April 2009

Date of Decision 2 October 2009

Counsel for the Applicant Mr N Dawson

Solicitor for the Applicant Legal Aid Commission

Counsel for the Respondent Mr G Purcell

Solicitor for the Respondent Department of Veterans’ Affairs Advocacy Service