Blair v Repatriation Commission

Case [2005] FCA 1076

FEDERAL COURT OF AUSTRALIA

Blair v Repatriation Commission [2005] FCA 1076

VETERANS’ ENTITLEMENT – claim that Lyme disease caused by operational service – hypothesis put forward that applicant bitten by tick, tick carried pathogens – whether Tribunal introduced burden of proof by requiring evidence of facts for hypothesis to be “reasonable”

Veterans’ Entitlements Act 1986 (Cth) ss 9, 120(1) and (3)

East v Repatriation Commission (1987) 16 FCR 517 applied
Repatriation Commission v Bey (1997) 79 FCR 364 applied
Repatriation Commission v Deledio (1998) 83 FCR 82 at 93 applied
Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571 applied

JOHN ALEXANDER WILLIAM BLAIR v REPATRIATION COMMISSION
NO TAD 2 OF 2005

HEEREY J
8 AUGUST 2005
MELBOURNE (HEARD IN HOBART)


IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY

TAD 2 OF 2005

BETWEEN:

JOHN ALEXANDER WILLIAM BLAIR
APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

HEEREY J

DATE OF ORDER:

8 AUGUST 2005

WHERE MADE:

MELBOURNE (HEARD IN HOBART)

THE COURT ORDERS THAT:

  1. The appeal is dismissed.
  2. The applicant pay the respondent’s costs to be taxed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY

TAD 2 OF 2005

BETWEEN:

JOHN ALEXANDER WILLIAM BLAIR
APPLICANT

AND:

REPATRIATION COMMISSION
RESPONDENT

JUDGE:

HEEREY J

DATE:

8 AUGUST 2005

PLACE:

MELBOURNE (HEARD IN HOBART)

REASONS FOR JUDGMENT

  1. The applicant appeals from a decision of the Administrative Appeals Tribunal constituted by the Hon R J Groom DP affirming a decision of the respondent which had been affirmed by the Veterans’ Review Board.

  2. The applicant had claimed that he suffered from Lyme borreliosis (Lyme disease) and that that disease was war-caused within the meaning of s 9 of the Veterans’ Entitlements Act 1986 (the Act). It was not in dispute that the applicant was at the relevant time engaged in operational service and that the applicable provisions are s 120(1) and (3) of the Act. Relevantly those provisions are:

    “(1) Where a claim under Part II for a pension in respect of the incapacity from … disease of a veteran … relates to the operational service rendered by the veteran, the Commission shall determine that … the disease was a war-caused disease … unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
    …
    (3) In applying subsection (1) or (2) in respect of the incapacity of a person from … disease … related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

    (a)…

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

    (c)…

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

  3. No…

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Details
AGLC
Blair v Repatriation Commission [2005] FCA 1076
Case
[2005] FCA 1076
Decision Date

CaseChat Overview and Summary

The case of Blair v Repatriation Commission involved the applicant, who served in the Royal Australian Navy from 1965 to 1969, seeking compensation for Lyme disease, which he claimed was contracted during his service. The central issue was whether the applicant's service could be linked to his Lyme disease diagnosis. The case was heard by the Administrative Appeals Tribunal (AAT), which had to determine if there was a reasonable hypothesis connecting the applicant's service to the Lyme disease based on the evidence presented.

The Tribunal examined the evidence, including the applicant's account of a shore excursion in Borneo where he encountered numerous insects, and later developed flu-like symptoms. The Tribunal considered expert evidence from Dr Richard Barry, who stated that while there was no evidence automatically excluding the diagnosis of Lyme disease, the hypothesis remained speculative. The Tribunal also noted Dr Bernie Hudson's evidence that a positive serological test for Lyme disease was not conclusive evidence of the disease. The key questions were whether there was evidence of a tick bite during the Borneo excursion and whether borrelia afzelii was present in Borneo at the time.

The Tribunal concluded that while the hypothesis linking the Lyme disease to the applicant's service was reasonable, it did not find sufficient evidence to support the claim that the applicant was bitten by a tick in Borneo. The Tribunal also found that the presence of borrelia afzelii in Borneo at the relevant time was not substantiated. Therefore, the Tribunal dismissed the appeal, holding that the hypothesis connecting the Lyme disease to the applicant's service was not sufficiently proven.

The final orders were that the appeal be dismissed and that the applicant pay the respondent's costs, to be taxed.

Orders

Orders of the court

1. The appeal is dismissed.

2. The applicant pay the respondent’s costs to be taxed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

No Statement of Principles has been determined by the Repatriation Medical Authority in relation to Lyme disease and thus the provisions of s 120A of the Act are not relevant. Evidence before the Tribunal The applicant served in the Royal Australian Navy from 16 January 1965 until 14 April 1969. He engaged in a number of periods of operational service while serving on HMAS Vendetta. On 8 November 1965 in Borneo the applicant went on a shore excursion which included a visit to a plantation. While on the excursion the applicant got some minute insects all over his hands. They were prickling him very severely. He had trouble dislodging them and washed them off in the river. They were numerous, perhaps a couple of dozen. Nine days after the excursion the applicant fell ill with flu like symptoms which were diagnosed as viremia. He had a temperature of 104 degrees Fahrenheit and a three day history of coryzal symptoms leading to headaches, malaise, and aches in his limbs and back. He was then discharged. Lyme disease is a tick transmitted disease which can cause chronic skin problems, headaches, musculo-skeletal pains and a range of other symptoms. The hallmark symptom is a bright red bullseye-like rash that develops at the site of the tick bite. This rash is called erythema migrans (EM). Borrelia afzelli are a known cause of Lyme disease, particularly in the Eurasian region. The applicant did not claim in evidence that he had EM after the Borneo excursion and there was no reference to it in the medical records from HMAS Vendetta. Nor is there any reference to any tick or other insect bite in those records. There was in evidence an article in the Scientific American of September 1994 which states that a tick has to be attached to a body for a period of thirty-six to forty-eight hours before an infectious dose of the pathogen will be transmitted. The most accurate serological test for Lyme disease is the “western blot” test. In November 1995 a serum sample from the applicant was sent to the Royal North Shore Hospital for this test. The serum tested positive to borrelia afzelii. Dr Richard Barry, a retired Professor of Microbiology gave evidence on behalf of the applicant and said that there were no pieces of evidence which would “automatically exclude diagnosis” of Lyme disease. However there was evidence from Dr Bernie Hudson of Royal North Shore Hospital that a positive serological test for Lyme disease is not conclusive evidence that a subject has the disease. Dr Barry said that he believed that the applicant was at some stage exposed to a borrelia afzelii like organism. Although not known at the time, this was “highly likely” to be endemic in South-East Asia. He said the confirmation of the diagnosis and the timing of the illness could be supported by information related to tick bites and the occurrence of EM like lesions. The following exchange took place between Mr Hart, counsel for the applicant, and Dr Barry:“Mr Hart: Is the evidence of Mr Blair as to his exposure to insects in the river in Borneo significant when it comes to providing the linkage?Dr Barry: I think it is quite significant as a possible linkage. The thing that has to be mentioned is that the tick factor – these ticks; they go through various life cycle stages and so, the first of those life stages is little embryonic form, which is really very, very small. It is the size of a pinhead or so, and in an area, where say, ticks are prevalent, you will find on the tips of blades of grass, you will find hundreds of these little things, which are just hanging around there to hitch onto a warm blooded mammal. So, it sounds to me like they probably were, either tick larvae or in the intermediate stage in the development of the tick.”

Decision

Reasons for decision

HEEREY J
The Tribunal recorded that Dr Barry was asked specifically about the possible hypothesis by Mr Hart in the following terms:“Mr Hart: Is there anything in the facts that have been made to you, including Mr Blair’s subsequent evidence regarding exposure to the small insects, which would enable you so [sic] say that there does not exist a reasonable hypothesis linking his exposure to Lyme disease?Dr Barry: No, I don’t think there are any pieces of evidence which would automatically exclude the diagnosis of the disease.Mr Hart: … so there is nothing which would enable you to say that the hypothesis is fanciful, is subject contrary to any known fact, any known research, or is it contrary to any know [sic] law of nature?Dr Barry: The answer to that is no. But qualified by the comment that, of course, nevertheless it has to remain speculative.”Tribunal’s decision The Tribunal referred to the Full Court decisions in East v Repatriation Commission (1987) 16 FCR 517 and Repatriation Commission v Bey (1997) 79 FCR 364. The Tribunal found that on the whole of the material a hypothesis had been advanced connecting the Lyme disease to the applicant’s eligible service. As characterised by the Tribunal that hypothesis was that Lyme disease is spread by ticks carrying various types of borrelia including borrelia afzelii. The applicant was at some stage exposed to an afzelii-like organism, ticks carrying afzelii may have been in Borneo when the applicant was there during his operational service, the applicant may have been bitten by a tick carrying borrelia afzelii and as a result the applicant may have contracted Lyme disease. The Tribunal noted that Dr Barry appeared to confirm, although in somewhat ambiguous terms, that the hypothesis was reasonable. Nevertheless it remained for the Tribunal to be so satisfied, taking into account all the evidence before it. There were two fundamental questions that could be asked which went to the very foundation of that hypothesis. They were:(a)Where is the evidence that the applicant was actually bitten by a tick in Borneo when he was there in 1965? and;(b)What is the basis for the claim that borrelia afzelii were in fact present in Borneo at the time? After discussing the evidence already mentioned the Tribunal found that the applicant did have annoying and unidentified insects on his hands for a period of time during the excursion in Borneo but that they were removed by him during that day. He referred to a section of Dr Barry’s report which said:“However the only way in which he could have been infected is by way of a tick bite, so that here his historical recall of his index of illness is important. This is because tick bites are different from the bites of other insects, such as midges and mosquitoes, in that the larval tick (pin head size) burrows into the skin and remains attached for days while it grows as it engorges its blood meal; most LB patients not only recall where they were when the tick attachment occurred, but describe efforts to remove it, and also remember the itchy, sore swelling of EM.”

Ratio Decidendi

Legal Principle Established

Established by: HEEREY J

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