Creffield and Repatriation Commission

[2004] AATA 826

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 826

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/131

VETERANS' APPEALS  DIVISION		)
Re		CONSTANCE CREFFIELD

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member McCabe

Date6 August 2004

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

...........[Sgd]..........

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – pensions and benefits – whether there is a reasonable hypothesis connecting injury with relevant service – decision affirmed

Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

6 August 2004

Senior Member McCabe    

Introduction

1.      Mrs Creffield’s late husband served overseas with the Royal Australian Air Force between 1943 and 1946.  Mr Creffield died on 19 Deptember 1995. The causes of death listed on his death certificate were renal failure, a secondary tumour in the bladder and a primary carcinoma of the jejunum.

2.      The applicant says her husband contracted the cancer as a result of his war service – in particular as a result of consuming service rations that contained known carcinogens. There is ample evidence that he suffered from intestinal problems since before he was discharged from the services.

3.      The respondent says Mrs Creffield’s claim cannot succeed because it is impossible for her to satisfy the relevant statement of principles. For reasons I will explain, I agree.

The material before the Tribunal

4. The Tribunal was provided with documents required under s 37 of the Administrative Appeals Tribunal Act 1975. Mrs Creffield also tendered the following documents:

• A leaflet issued by the Australian Army entitled “Post-Ulcer Instructions”; and
• Written submissions.

5.      Mrs Creffield represented herself. She was articulate and well-prepared. Mr Stoner represented the Repatriation Commission.

The hypothesis

6.      There is no doubt about diagnosis in this case. The causes of death listed on the death certificate are not challenged. The applicant’s principal problem was the cancer in his jejunum.

7.      The Federal Court explained the approach the Tribunal must take in cases like this in Repatriation Commission v Deledio (1998) 83 FCR 82. There are four steps. The first step is to identify the applicant’s hypothesis. Mrs Creffield says her husband’s cancer was attributable to his service during World War II.

8.      Mr Creffield suffered intestinal problems throughout his life. I note the respondent accepted functional dyspepsia as a war-caused disability in 1951; the Commission subsequently amended the description applied to the condition to “duodenal ulcer” in 1969. His condition worsened in 1992. He went to the doctor and was referred to specialists who conducted exploratory procedures. They discovered the presence of bacteria that are apparently a factor in the development of cancer. The drug treatment designed to eliminate the bacteria was unsuccessful. The cancerous growths were discovered in Mr Creffield’s jejunum after more extensive investigation. Several secondary cancers were also discovered. Sadly, the condition had advanced to the point where it could not be successfully treated. Mr Creffield subsequently died.

9.      The applicant said the cancer in her husband’s jejunum must have developed as a result of what he had eaten and other conditions in the service. She referred me to medical evidence that made a connection between compounds in service rations at the time and research on the effect of barium meals that would have caused cell degeneration that made the development of a cancer more likely. She also suggested the cancer must have been present during Mr Creffield’s service. She claims there was a misdiagnosis – he was treated for the wrong thing.

The relevant statement of principles

10.     The next step in the Deledio process is to identify the relevant statement of principles (SoP). The relevant SoP is No. 153 of 1996, amended by No. 7 of 1998 which deals with malignant neoplasm of the small intestine. That is the only SoP that can apply given the diagnosis.

Assessing the applicant’s hypothesis against the SoP

11.     The third step in the Deledio process is to determine whether the facts as stated by the applicant “fit” the SoP. For the purposes of this case, I take the applicant’s account of the facts at face value and consider whether any of the factors identified in the SoP can be said to exist. If I am unable to conclude a factor exists, the applicant’s hypothesis is not reasonable. If the hypothesis is not reasonable, the claim must fail.

12.     Paragraph 5 of the SoP identifies four factors. Three of them are found in paragraph 5(a). None of the factors in paragraph 5(a) exist. Mrs Creffield did not suggest Mr Creffield suffered from Crohn’s disease (it was ruled out during the course of investigations) or coeliac disease. She did not suggest there were familial adenomatous polyposis or adenomatous polyps in the small intestine either.  She says that paragraph 5(b) is satisfied on the basis that her late husband was unable to obtain appropriate clinical management for malignant neoplasm because:

·     he served on an isolated island during the war and did not have access to proper care for his intestinal problems; and

·     his malignant neoplasm was missed by the doctors who treated him for the functional dyspepsia and duodenal ulcers. The condition was therefore aggravated by the circumstances of his service, whatever its cause.

13.     Mr Stoner pointed out that paragraph 6 of the SoP means the respondent is only liable where the inability to obtain clinical management aggravated a condition that existed before or during the veteran’s service. If the malignant neoplasm developed after the veteran left the armed forces, the respondent will only be liable if it is possible to identify one of the factors listed in paragraph 5. That cannot be done in this case. It follows Mrs Creffield can only succeed in her claim if it can be said the malignant neoplasm was present during service.

14.     Furthermore for the applicant’s hypothesis to be considered reasonable the whole of the evidence before the Tribunal must generally point to or support that hypothesis – it must not be merely left open as a possibility: Repatriation Commission v Bey (1997) 79 FCR 364; East v Repatriation Commission (1987) 16 FCR 517. Nor can it be “obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous”: Bushell v Repatriation Commission (1992) 175 CLR 408. I stress the Tribunal does not make ultimate findings of fact at this stage of the Delidio process. 

15.     Having regard to the whole of the evidence before me, I cannot say any of it points to or supports the applicant’s hypothesis.  There is simply no evidence pointing to the existence of a malignant neoplasm developing before Mr Creffield left the services in 1946.  The applicant’s hypothesis is a mere possibility.  It is not reasonable, and it must fail at this point.

Conclusion

16.     Mrs Creffield was critical of the failure of the Repatriation Medical Authority to include references to smoking and other known carcinogens as factors in the SoP.  I note from the file and her evidence that she has already made submissions to the Authority. I understand it is looking into her claims. It may amend the SoP to refer to the matters she has raised if its research bears out her arguments. But that does not help Mrs Creffield now. The respondent and the Tribunal are bound to apply the SoP as it exists. Our hands are tied. If she is unable to satisfy the requirements of the SoP she cannot succeed in her claim.

17.     It follows the decision of the Repatriation Commission must be affirmed.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member McCabe

Signed:         [Sgd]   .....................................................................................
  Associate:  Thomas Ritchie

Date/s of Hearing: 13 July 2004
Date of Decision: 6 August 2004
The applicant represented herself.
The respondent was represented by Mr Stoner, a departmental advocate.