Chesterman and Repatriation Commission
[2005] AATA 1316
•30 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1316
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1997/1067
VETERANS' APPEALS DIVISION ) Re CAROLINE WILLIAMSON CHESTERMAN Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President Don Muller Date30 December 2005
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and in substitution determines that the death of Harold Geeves Chesterman was war-caused, within the meaning of that term in the Veterans’ Entitlements Act 1986. ...............SIGNED...............................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
VETERANS’ AFFAIRS – death from prostate cancer as a result of a diet high in animal fat – war caused – decision set aside.
Veterans’ Entitlements Act 1986: ss.5C, 7, 8, 13, 120, 120A, 196B(14)
REASONS FOR DECISION
Deputy President Don Muller 1. Caroline Williamson Chesterman, the Applicant, has claimed a widows’ pension pursuant to section 13(1)(a) of the Veterans’ Entitlements Act 1986 (the VEA).
2. Mrs. Chesterman claims that her late husband, Harold Geeves Chesterman, died from the effects of a war-caused disease, namely prostate cancer.
3. The elements of Mrs. Chesterman’s claim are:
(a)Harold Geeves Chesterman died from the effects of prostate cancer.
(b)For many years prior to his death from prostate cancer, Mr. Chesterman was in the habit of consuming food which had a high animal fat content.
(c)A diet with a high animal fat content is an accepted cause of prostate cancer.
(d)Mr. Chesterman’s habit of eating a diet with a high animal fat content arose out of the diet to which he had become accustomed while he served in the Royal Naval Reserve and the Royal Navy.
(e)The food that he had become accustomed to eating during his years in the Royal Naval Reserve and the Royal Navy was higher in animal fat content than his pre-service diet.
(f)Thus, Mr. Chesterman’s death from prostate cancer was related to his Royal Naval Reserve and Royal Navy service.
4. Mrs. Chesterman’s claim has been rejected by the Respondent on the grounds that her late husband’s death was not causally related to his eligible service.
5. The Veterans’ Review Board (VRB) affirmed the Respondent’s decision.
6. Mrs. Chesterman seeks a review of that decision.
Legislative Framework
7. Pursuant to section 13(1)(a) of the VEA, where the death of a veteran was war-caused, the Commonwealth is, subject to the VEA, liable to pay pensions by way of compensation to the dependants of the veteran in accordance with the VEA.
8. Section 8(1)(b) of the VEA provides that the death of a veteran shall be taken to be war-caused, if the disease contracted by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran.
9. Section 7(1)(a) of the VEA provides that a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service.
10. The question of whether a death is war-caused within the meaning of section 8 of the VEA is to be decided by applying the standard of proof prescribed by section 120 of the VEA.
11. Section 120(1) provides that where a claim under Part II for a pension in respect of the death of a veteran relates to the operational service rendered by the veteran, the Commission shall determine that the death was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
12. Section 120(3) provides that the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the death was war-caused 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 death with the circumstances of the particular service rendered by the person.
13. Section 120A(3) provides that for the purposes of section 120(3), a hypothesis connecting 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 Statement of Principles (SoP) that upholds the hypothesis.
14. Subsection 196B(14) of the VEA provides that a factor causing or contributing to a death is related to service rendered by a person if it arose out of, or was attributable to, that service.
Necessary Elements of Hypothesis
15. In the context of this review the elements of a hypothesis connecting prostate cancer contracted by the veteran with the circumstances of his war-service (operational service) are as follows:
(a)the veteran’s pre-war service diet contained animal fat of X grams per day on average;
(b)the veteran’s war service diet, provided to him by the Royal Navy, contained animal fat of (X + Y) grams per day on average;
(c)the increase in consumption of animal fat of Y grams per day whilst on eligible service was such that it could cause the veteran to increase his consumption of animal fat in his post-war service diet to a level, for a significant number of years, which could cause prostate cancer.
16. If the material placed before the Tribunal does raise a hypothesis containing the above elements, that hypothesis will only be reasonable if the hypothesis is consistent with, or fits the template of the relevant SoP established by the Repatriation Medical Authority.
17. In this case the relevant SoP at the date of this decision is Instrument No. 28 of 2005, “Malignant Neoplasm of the Prostate”. Those parts of No. 28 of 2005 relevant to this review are:
“Factors that must be related to service
4.Subject to clause 6, at least one of the factors set out in clause 5 must be related to the relevant service rendered by the person.
Factors
5.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 a person’s relevant service is:
….
(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.
Other definitions
8. For the purposes of this Statement of Principles:
“animal fat” means 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.”
Material Placed Before the Tribunal
18. The following matters are not in dispute and the Tribunal finds:
(a)Harold Geeves Chesterman was born at East Malvern, Victoria on 28 February 1917.
(b)In 1931, 1932 and 1933, he attended Thames Nautical Training College, Port of London, England.
(c)From 1933 to 1936, he was an apprentice with the Post Line Shipping Company which sailed between the U.K. and Australia.
(d)On completion of his apprenticeship he continued in the Merchant Service until 1940. He continued to work in ships which sailed between the U.K. and Australia.
(e)In 1933, he enlisted in the Royal Naval Reserve.
(f)On 16 January 1940 he enlisted in the Royal Navy. He served in the Royal Navy until he was released from active service in 1946 and ultimately discharged on 27 January 1947.
(g)He returned to live in Australia in 1946.
(h)He spent his entire WWII service at sea, except for survivor’s leave.
(i)He served on, and captained, ships which were escorting the large Atlantic convoys, and the U.K. to Russia convoys. He was also involved in anti-submarine work.
(j)In 1941, a ship in which he was serving was sunk. He was extremely fortunate to survive.
(k)He rendered operational service for the whole of his service as defined in the VEA.
(l)He married Caroline Williamson Chesterman on 12 February 1941, at Aberdeen, Scotland.
(m)The veteran had the following disabilities accepted by the Repatriation Commission as service related:
· Bilateral sensori neural hearing loss
· Carcinoma of the Bowel
· Solar skin damage.
(n)The veteran had the following condition accepted as Eligible for Treatment (not service related) by the Repatriation Commission:
·Adenocarcinoma of bowel
(o)He was first diagnosed with prostate cancer in 8 March 1994.
(p)He died on 26 January 1997. The cause of death was disseminated carcinoma of prostate.
(q)He was a “veteran” within the meaning of that term in section 5C(1) of the VEA.
(r)On returning to Australia he joined the Commonwealth Lighthouse Service, a branch of the Commonwealth Department of Shipping and Transport. He served in the S.S. Cape Leeuwin and M.V. Cape Morton. He retired in 1978.
19. Evidence about Mr. Chesterman’s diet was provided by:
(a)Mr Geoff Taylor, who served on Arctic convoys and in the North Atlantic during WWII; and
(b)The applicant, Mrs. Chesterman, who provided a written statement and gave oral evidence. She also provided statements to the expert dieticians about her late husband’s diet.
20. The evidence about Mr. Chesterman and his diet was to the following effect:
(a)There is no direct evidence about Mr. Chesterman’s diet prior to his WWII service, other than he served in merchant ships and obviously ate the food provided in them.
(b)Mr. Chesterman’s WWII diet was probably similar to that described by Mr. Taylor, which was:
Breakfast: Variations of the following:
Fried Bread
Tinned tomatoes.
Herrings in sauce.
Ship’s biscuits chopped up and fried
A “cake” made of stale bread, dripping, dried fruit and sugar, baked into a cake.
Midday:Meat twice a week, Bully beef battered and fried with dehydrated vegetables plus boiled pudding with custard.
Evening Meal Sausage in Yorkshire pudding
Scrambled egg (powered)
Whilst on duty: Constant hot drinks, in particular a drink called “Kye” which was prepared by shredding a large block of dark cholate with large amounts of fat into a “billy can” plus “ideal milk”, sugar, onto which boiling water was poured.
Lard and Dripping: These fats came in 4 gallon drums. They were used in the cooking of food, and spread on biscuits.
(c)Immediately after he was discharged from the Royal Navy, Mr Chesterman had great difficulty in eating fatty foods. He had “dreadful indigestion”. Initially he could not cope with eating butter. He liked butter but it took some time before he was able to eat it without upsetting his stomach. It also took some time before he was able to eat bacon and eggs.
(d)When Mr. Chesterman was commanding the lighthouse ships he spent three months away from home and one month at home.
(e)Mrs. Chesterman does not know what her husband ate while he was away from home but she assumes that he ate “very royally”.
(f)When her husband was home, Mrs. Chesterman cooked for him. She filled in the dietary surveys for the dieticians, detailing the food she prepared for her husband when he was at home.
(g)Mrs. Chesterman particularly remembered that her husband used a lot of butter on his food. When he spread butter on his toast, the butter dripped over the sides. He also spread butter very thickly on his sandwiches. He put butter on steak during his evening meal.
(h)Mr. Chesterman used to put a lot of milk in his coffee and tea.
(i)Mr. Chesterman liked gravy for most meals. The gravy was prepared with pan drippings and flour.
(j)Mr. Chesterman enjoyed desserts with his evening meals. He particularly enjoyed very sweet rice pudding.
(k)In 1978, Mr. Chesterman was diagnosed with diabetes. His diet had to be modified from that time on. He had skim milk on cereal, salads with ham and dripping was never used.
21. The Tribunal heard evidence from Dr. Justin Kenardy, psychologist and specialist in behavioural and rehabilitation medicine. Dr. Kenardy said:
“So that, once the war was over, whatever drive to consume that fat had been established during the war would continue irrespective of factors that were operating on that person’s environment.
That if a person had changed their preference and desire to consume fat during the war, then that would be something that would be related specifically to the fat itself that they’d consumed, not the circumstances of the war. So you would expect that that would generalise into new situations because once they’d left the war circumstances there would be – you would expect to see that that preference and desire to consume fat would continue irrespective of the circumstances that they were in.”
22. There is no specific evidence before the Tribunal as to what Mr. Chesterman’s diet was before he enlisted in the Royal Navy in 1940. He served in merchant ships and ate whatever was supplied to the crew members. The dieticians produced figures from an Australian food survey of 1936-38 which indicates that at that time the average adult male consumed about 122 to 126 gm of animal fat per day. Mr. Chesterman probably consumed about the same as the average.
23. The evidence about Mr. Chesterman’s WWII diet is far clearer. It is obvious that he consumed relatively large quantities of lard and dripping. It seems that the naval authorities believed that a diet high in animal fat content would help to ward off the effects of freezing conditions under which the personnel were operating. It is not possible to put a specific figure on the animal fat content of the diet but it would have been much higher than he had been accustomed to eating prior to his service.
24. Mr. Chesterman’s immediate post war diet was low in animal fat content because of the state of his digestive system. However, once his alimentary canal returned to normal, and he was able to eat the food he enjoyed, he ate a diet which was high in animal fat.
25. Mr. Chesterman continued that diet high in animal fat until he developed diabetes in 1978.
26. The material placed before the Tribunal does raise a hypothesis of the type set out in paragraph 15 above. That is, Mr. Chesterman ate a normal Australian pre-war diet prior to his Royal Navy service. On service he ate a diet high in animal fat content, which included lavish servings of lard, dripping and chocolate, to combat the freezing conditions of service. In his post-service civilian life, when his ability to process food returned to normal, he was able to eat food which he enjoyed which had a high animal fat content.
27. There is a hypothesis which links the death of Mr. Chesterman from prostate cancer with his Royal Navy service.
28. The dieticians agree that if Mrs. Chesterman’s estimates of what her husband ate in the years up until 1978, were accurate, he had an increase in animal fat consumption which would have satisfied that part of the SoP relating to an increase of 40% to at least 50 mg per day.
29. Mr. Chesterman was first diagnosed with prostate cancer in March 1994. In the twenty five years before he was diagnosed with prostate cancer, that is from 1969 onwards, he ate a diet high in animal fat, for about nine years until 1978.
30. The SoP is satisfied; Mr. Chesterman increased his animal fat consumption by at least 40% to at least 50 mg/day and maintained these levels for at least five years within the twenty-five years before the clinical onset of prostate cancer.
31. Dr. Ruth English, dietician, does not accept that Mrs. Chesterman’s figures are accurate. Dr English believes that if Mr. Chesterman ate as much as Mrs. Chesterman said he did, he would have gained a lot more weight that he did.
32. Dr English also disputes the contention that Mr. Chesterman’s WWII diet contained more animal fat than his pre-war diet. Dr. English has used the figures relating to the contents of English WWII ration packs to refute the suggestion that Mr. Chesterman’s WWII diet was high in animal fat.
33. I take the view that as far as Mr. Chesterman’s WWII diet is concerned Dr. English has failed to take account of Mr. Taylor’s evidence about lard and dripping being added to the food in large amounts, due to the unusual circumstances relating to operating in Arctic conditions.
34. I am conscious of the fact that the dietary surveys are inherently inaccurate because of the difficulty witnesses have in recalling the details of meals eaten by someone else many years ago. Nevertheless, I accept the general thrust of the evidence that Mr. Chesterman ate an average diet prior to his naval service; that he ate a diet very high in animal fat during his naval service; that when his digestive system recovered after he had served for about five years continuously at sea in war-time conditions, he continued to eat foods with a high animal fat content for many years.
35. I am not satisfied beyond reasonable doubt that there is no sufficient ground for determining that the death of Mr. Chesterman was war-caused.
36. The decision under review is set aside and in substitution the Tribunal determines that the death of Harold Geeves Chesterman was war-caused.
I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller.
Signed: .....................................................................................
R. Link, AssociateDate/s of Hearing 14, 21.3.05, 8.4.05, 10,11,12.5.05, 20,22.6.05, 30.9.05
Date of Decision 30 December 2005
Counsel for the Applicant Mr. D. O’Gorman
Solicitor for the Applicant Gilshenan and Luton
Counsel for the Respondent Ms. E. Ford
Solicitor for the Respondent Mr. S. Francis
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