Cornish and Repatriation Commission - [2001] AATA 138

DECISION AND REASONS FOR DECISION [2001] AATA 138

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1548

VETERANS' APPEALS DIVISION       )
           Re      ROBYN CORNISH
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Dr D. Chappell, Deputy President Dr J. Vallentine, Member

Date23 February 2001
PlaceSydney

Decision The decision under review is set aside and in substitution the Tribunal finds that the Veteran's death being war-caused the Applicant is entitled to pension under s 13(1) of the Veteran's Entitlement Act 1986. The date of effect is 14 May 1990.

(signed Duncan Chappell)
..............................................
Deputy President
CATCHWORDS
VETERANS' AFFAIRS – Veterans' Entitlements – widow's pension – whether death of Veteran war caused – operational service in Vietnam – reasonable hypothesis test – cause of death carcinoma of the caecum – exposure to pesticides and herbicides throughout service in Vietnam – pesticides and herbicides cause colon cancer – Veteran ingested dapsone throughout service in Vietnam – dapsone causes immuno-suppression that augments the risk of contracting cancers – Tribunal not convinced beyond reasonable doubt that the death of the Veteran was not war caused.

Administrative Appeals Tribunal Act 1975 – s 37
Veterans' Entitlements Act 1986 – ss 8(1), 13(1), 120(1), 120(3)

Re Repatriation Commission & Smith (1990) 19 ALD 464
Repatriation Commission v Schar (1991) 25 ALD 503
Re Peter Edwards & Repatriation Commission (AAT, unreported, 21 December 1992)
Re Humffray & Repatriation Commission (AAT, unreported, 2 July 1991)
Re Kenneth Kain & Repatriation Commission (AAT, unreported, 21 December 1992)
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Lowerson v Repatriation Commission (1994) 50 FCR 252
Government Transport, Commissioner for v Adamcik (1961) 106 CLR 292
East v Repatriation Commission (1987) 16 FCR 517

REASONS FOR DECISION

23 February 2001 Dr D. Chappell, Deputy President Dr J. Vallentine, Member

BACKGROUND
Application

This is a claim for pension by Robyn Kathleen Cornish ("the Applicant"), who is the widow of the late Captain Robert J Cornish ("the Veteran"). By consent the case has been remitted from the Federal Court for re-hearing by the Administrative Appeals Tribunal of an application for review of a decision of a delegate of the Respondent on 16 August 1990 [T13] that the death of the Veteran was not war-caused.
Mr Vincent of counsel appeared for the Applicant and Mr Butcher for the Respondent. In addition to material lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 the Tribunal received in evidence a number of medical monographs and reports:

Federal Court Appeal Book (Exhibits A-E);
Report authored by Dr Peter McCullagh dated 7 July 1999 (Exhibits A-F)
Report by Dr Stewart dated 21 June 1999 (Exhibits R-iii)
Article written by Kirsten Wiklund et al "Risk of cancer in pesticide applicators in Swedish Agriculture" Accepted 19 December 1988; Article written by Rodolfo Saracci et al Cancer mortality in workers exposed to chlorophenoxy herbicides and chlorophenols" 26 October 1991 (Exhibit R-iv)
Article written by A Sheil "Cancer in Immune-Suppressed Organ Transplant Recipients Aetiology…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cornish and Repatriation Commission

Details

AGLC: Cornish and Repatriation Commission [2001] AATA 138
Case: [2001] AATA 138
Decision Date: 23 February 2001

CaseChat Overview and Summary

The case involves the widow of a veteran seeking a pension following the veteran's death from carcinoma of the caecum. The dispute revolves around whether the veteran's death was caused by his operational service in Vietnam, specifically his exposure to pesticides and herbicides, and the ingestion of dapsone, which is known to cause immuno-suppression and thereby increase the risk of contracting cancers. The case was heard by the Administrative Appeals Tribunal.

The primary legal issue the Tribunal had to decide was whether the death of the veteran was war-caused, under the "reasonable hypothesis" test set out in the Veterans' Entitlements Act 1986. The Tribunal had to consider whether the veteran's exposure to carcinogenic chemicals during his service, or in conjunction with his ingestion of dapsone, was a reasonable hypothesis for attributing his death to war service. The Tribunal had to weigh the scientific evidence, including the studies on the carcinogenic effects of herbicides and pesticides, and the immunosuppressive effects of dapsone, against the veteran's medical history and other potential causes of his cancer.

The Tribunal found that the hypothesis attributing the veteran's death to his exposure to carcinogenic chemicals during service, or in conjunction with his ingestion of dapsone, was a reasonable hypothesis. The Tribunal found that the scientific evidence, while not conclusive, was sufficient to support the hypothesis that the veteran's exposure to herbicides and pesticides, and his ingestion of dapsone, increased his risk of developing colon cancer. The Tribunal was not convinced beyond reasonable doubt that the veteran's death was not war-caused.

The Tribunal's decision was based on the balance of probabilities, and the weight of the scientific evidence. The Tribunal found that the hypothesis attributing the veteran's death to his service was supported by the scientific evidence, and that the risk factors associated with his service were sufficient to support a finding that his death was war-caused.

The Tribunal ordered that the Repatriation Commission pay the veteran's widow a pension under the Veterans' Entitlements Act 1986.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In this case the central issue for the Tribunal is whether a hypothesis attributing the Veteran's death from carcinoma of the colon to his exposure during operational service to carcinogenic chemicals alone, or in conjunction with his ingestion of dapsone, is a reasonable hypothesis within the meaning of the Act.EVIDENCE Scientific Papers A number of scientific papers were reviewed during the course of the hearing. Prominent among them are the following, listed according to date of publication with their eponymous titles:(a)The Singapore paper - "Risk of Acute Non-Specific Upper Respiratory Tract Infections in Healthy Men Taking dapsone-Pyrimethamine for Prophylaxis against Malaria" Lee and Lau, BMJ vol 296: 893-5 (1988) Among 8337 recruits the mean risk of URTI was 64% higher in the study group than the controls. The cause is postulated to be immunosuppression, perhaps with physical stress having a synergistic effect. [Exhibit R-vii](b)The Alavanja Paper - "Mortality Among Forest and Soil Conservationists" Alavanja et al, Archives of Environmental Health, Mar/Apr 1989 vol 44 (No 2), 94-101. In this study carcinoma of the colon demonstrated a statistically significant linear trend with duration of employment as either a forest or a soil conservationist, which suggested to the authors an occupational aetiology for the disease. [T32, p 193](c)The Wiklund Paper - "Risk of cancer in pesticide applicators in Swedish agriculture" Wiklund et al, British Journal of Industrial Medicine, 1989;46:809-814. This is an analysis of cancer risk in 20,245 licensed pesticide applicators followed up for a mean period of 12.5 years. No statistically significant risks or time trends were observed. [Exhibit R-iv](d)The Brownson Paper – "Cancer Risk among Missouri Farmers" Cancer 64:2381-2386 1989. This reports cancer registry mortality studies which found higher age-adjusted incidence of lymphoma and lip cancer, among other tumors. Unlike most other studies this paper reported a slightly elevated risk of carcinoma of the rectum (age adjusted ratio of 1.21). Carcinoma of the colon however, was less common (age adjusted odds ratio of 0.86). [T docs p201](e)The Ranch Hand Study - "Health Status of Air Force Veterans Occupationally Exposed to Herbicides in Vietnam" Wolfe et al, JAMA October 10 1990 - Vol 264, No 14, 1824-1831. This examined cumulative mortality to 1987 of approximately 1000 of the most heavily herbicide-exposed US service personnel from the Vietnam War. No evidence in the study suggested Ranch Hands were experiencing significantly increased systemic cancer at any particular site. [Exhibit R -viii](f)The Saracci Paper - "Cancer Mortality in workers exposed to chlorphenoxy herbicides and chlorophenols" Saracci et al, Lancet 1991; 338: 1027-32. This is an historical cohort study of mortality in 18,910 production workers or sprayers from ten countries. It found a non-statistically significant increase in soft tissue sarcoma and also apparent increases in the incidence of endocrine and nasal cancers, compatible with a causal relationship to herbicides but not TCDD (dioxin). [part of exhibit R-iv](g)1993 Sheil Paper - "De Novo Malignancy..." Sheil, Disney, Mathew and Amiss, Transpl Proc Vol 25, No 1 (February) 1993: pp1383-4. In this series, 90 among 6596 renal transplant recipients were found to have developed alimentary tract cancers. The risk ratio was 2.5. Half of these were large bowel cancers (specific risk ratio unstated). [part of exhibit A-I](h)1996 Sheil Paper – "Malignancy in Organ Transplant Recipients" AGR Sheil, Transplantation Proceedings, Vol 28, No 3 (June) 1996, p1162. In this paper 7% of 6993 renal transplant recipients were reported to have developed non-skin cancers over a mean period of 6.8 years. Of these 20% (104) were "digestive organ" cancers. [part of exhibit A-I](i)1997 Sheil Paper - "Lymphoma Incidence, Cyclosporine, and the Evolution and Major Impact of Malignancy Following Organ Transplantation" Sheil et al, (1997). This paper analyses cancers which occurred in 8% of 7909 renal transplant recipients. 20% of these cancers were "digestive tract" cancers (unfortunately not further categorised), of mean onset 10 years post-transplant. The risk ratio was 2.4. [exhibit A-I](j)The 1997 IARC Paper - extract from WHO Monograph - "Evaluation of Carcinogenic Risks to Humans: polychlorinated dibenzo-para-dioxins and polychlorinated dibenzofurans..." IARC Monographs Vol 69, 4-11 February 1997, Preamble pp 22-27, and Monograph pp 336-343. The working group found that 2,3,7,8-TCDD (dioxin) causes cancer in humans and it is a multi-site carcinogen in animals. The strongest evidence is for all cancers combined, rather than for any specific cancer site, although lymphoma and sarcoma are singled out for special mention. The relative risk for all cancers combined in the most highly exposed and longer-latency sub-groups is 1.4. The authors comment:"While this relative risk does not appear likely to be explained by confounding, this possibility cannot be excluded. There are few examples of agents which cause an increase in cancers at many sites; examples are smoking and ionising radiation in the atomic bombing survivors… This lack of precedent of a multi-site carcinogen without particular sites predominating means that epidemiological findings must be treated with caution; on the other hand, the lack of precedent cannot preclude the possibility that in fact 2,3,7,8-TCDD, at high doses, does act as a multi-site carcinogen. It should be borne in mind that the general population is exposed to levels far lower than those experienced by the industrial populations." [Exhibit A-H](k)The Renlund Paper – "Incidence of Adenomatous Polyps in Cardiac Transplant Recipients" Renlund et al, Transplantation Vol 64, No 3, 1997, pp528-30. 93 heart transplant recipients were examined for evidence of colonic polyps, considered to be the initial lesions from which colon carcinoma arises. The authors conclude that long term immunosuppression does not increase the risk for adenomatous polyps. [Exhibit R-vi](l)1998 Sheil Paper - "Cancer in Immune-suppressed Organ Transplant Recipients: Aetiology and Evolution" Sheil, Transplantation Proceedings, 30, 2055-2057 (1998). The author concludes that up to 30% of transplant recipients will develop cancer when follow-up analysis is for as long as 30 years after the transplant. It is likely that immunosuppressive agents promote cancer development indirectly through immune inhibition. [exhibit A-G]

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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