Findlay and Repatriation Commission
[2004] AATA 137
•12 February 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 137
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T2002/97
VETERANS' APPEALS DIVISION ) Re IAN FINDLAY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms A F Cunningham (Part-time Member) Date12 February 2004
PlaceHobart
Decision The decision under review is affirmed.
[Sgd A F Cunningham]
Part-Time Member
CATCHWORDS
Veterans’ Entitlements – autoimmune disease – reasonable hypothesis test – exposure to chemicals during operational service in Vietnam – degree of exposure – hypothesis not reasonable – decision under review affirmed.
Veterans’ Entitlements Act 1986 – s9(1), 14(1), 120(1) and (3)
REASONS FOR DECISION
12 February 2004 Ms A F Cunningham (Part-time Member) 1. The applicant, Ian Findlay, has sought the review of a decision of the Repatriation Commission dated 20 March 2002, which was subsequently affirmed by a decision of the Veterans’ Review Board on 9 May 2002 whereby Mr Findlay’s claim to have autoimmune disease accepted as due to war-service was refused.
2. The applicant was represented by Christopher Webster. The respondent was represented by Peter Hanks QC., and Brian Morgan. Oral evidence was given by Ian Findlay, Peter John McCullagh, Senior Fellow in the John Curtin School of Medical Research at the Australian National University, Professor Ban-Hock Toh, Chair, Department of Pathology and Immunology, Monash University Medical School, and Clive Francis Cotter, Retired RAAF Officer. The T documents were tendered pursuant to s37 of the Administrative Appeals Tribunal Act 1975. Volume 1 of the Royal Commission report on the Use and Effects of Chemical Agents on Australian Personnel in Vietnam by the Honourable Justice Phillip Evatt (The Evatt Report) was tendered together with medical reports prepared by the above-named doctors and various other publications, documents and photographs.
3. Mr Findlay’s claim was made pursuant to s14(1) of the Veterans’ Entitlements Act 1986 (“the Act”) on 28 November 2001 on the basis of a diagnosis of autoimmune disease. A medical report, letters and pathology results were attached to the claim form.
4. It was not disputed that Mr Findlay served in South Vietnam from 1 April 1967 to 9 April 1968 and that this service constituted operational service within the meaning of the Act. Mr Findlay thus rendered eligible service within the meaning of s7(1)(a) of the Act.
5. The issue for determination by the Tribunal is whether Mr Findlay suffers from autoimmune disease which is “war-caused” within the meaning of the Act.
Legislation
6. The legislative provisions of s9(1) provide:
“(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…
(d) the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
(2) For the purposes of this Act, where any incapacity of a veteran was, in the opinion of the Commission, due to an accident that would not have occurred, or due to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service:
…
(b) if the incapacity was due to a disease—the incapacity shall be deemed to
have risen out of that disease and that disease shall be deemed to be a war-caused disease contracted by the veteran.”
The Disease
7. The medical evidence satisfies the Tribunal that Mr Findlay is currently suffering from some form of autoimmune disease. Mr Findlay was diagnosed in July 1994 as suffering from systemic lupus erythematosus. In October 1999 Dr Stewart Graham commented in a letter addressed to Dr Suart Guest:
“His medical illnesses are those of a mixed connective tissue disease or better thought of as undifferentiated connective tissue disease with its principle features being that of sjogren’s syndrome. The documentation for that is positive RO and LA antibodies and a series of immunological disturbances over time which fluctuate.”
8. On 12 December 2000 Dr Alasdair MacDonald reported to Dr Stuart Guest that Mr Findlay’s “autoimmune disease is also active”.
9. Dr Stewart Guest prepared a report as to a relationship between Mr Findlay’s autoimmune disease and exposure to pesticides and pyrethrum in support of Mr Findlay’s application for an increase in his disability pension. He stated in that report dated 27 November 2001:
“For the past ten or so years Mr Findlay has complained of a myriad of symptoms which clinical physicians in both South Australia and Tasmania have unanimously agreed that Mr Findlay has an undifferentiated connective tissue disease (autoiummune disease which includes Lupus) as well as an inclusion body myositis. …”
10. It was Dr Guest’s that based on scientific evidence that Mr Findlay’s autoimmune disease is strongly correlated to his service in Vietnam.
Standard of Proof
11. It is agreed that there is no relevant Statement of Principle concerning autoimmune disease and the question as to whether Mr Findlay’s disease is war-caused falls to be determined under s120(1) and (3) of the Act.
12. It was argued on behalf of Mr Findlay that there is a reasonable hypothesis connecting his autoimmune disease with his service. It was contended by the respondent that the material before the Tribunal does not raise a reasonable hypothesis connecting Mr Findlay’s disease with the circumstances of his service in Vietnam in that the material when considered as a whole does not point to a causal connection between the disease and the circumstances of his operational service in Vietnam. At best, it was contended that such a connection is no more than a possibility that is left open which is not sufficient for a “reasonable hypothesis” within the meaning of the Act.
13. The three step process which should be adopted when applying the reasonable hypothesis test stated in ss120(1) and (3) of the Act was according to Heerey J in the recent decision of Stafford v Repatriation Commission (2001) FCA 989, authoritatively summarised by the Federal Court in Repatriation Commission v Bey (1997) 79 FCR 364 at 366:
“The method of applying s120(1) and (3) is now well established:
1. One commences with subs (3). The first step is to identify the hypothesis said to establish the causal link between the veteran's eligible war service and the death, injury or disease. Identifying the hypothesis is a question of fact.
2. The second step under subs(3) is to determine whether the hypothesis is reasonable. The material will raise a reasonable hypothesis if it points to some fact or facts which support the hypothesis (the `raised facts') and if the hypothesis can be regarded as reasonable assuming the raised facts to be true. In determining whether the hypothesis is reasonable the decision maker must identify the facts said to point to it.
3. Whether a hypothesis is reasonable is a question of fact. The decision maker must be satisfied that the hypothesis is reasonable after considering the whole of the material. Proof of facts and onus of proof are not in issue at this point.
4. If the decision maker concludes that the material raises a reasonable hypothesis, the third step is reached. Subsection (1) must be applied, and the claim will succeed unless one or more of the facts necessary to support another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.
In some cases the hypothesis may assume the occurrence or existence of a `fact'. That itself does not make the hypothesis unreasonable: Byrnes at 570 and Critch v Repatriation Commission (1996) 43 ALD 574 at 577."
Submissions
14. In the applicant’s statement of issues dated 30 June 2003 it was stated:
“The applicant alleges that he contracted the claimed condition as a result of his exposure to chemicals during his operational service in South Vietnam and this is a reasonable hypothesis as to the cause of the claimed condition.”
15. In the submissions lodged on behalf of Mr Findlay dated 25 November 2003, it is contended that the hypothesis put forward by Mr Findlay is:
(a)That he served in South Vietnam in the Australian Air Force between 1 April 1967 and 9 April 1968.
(b)That during this period he came into contact with herbicides and/or pesticides.
(c)That subsequent to his service he was diagnosed as suffering autoimmune disease.
(d)That his contact with herbicides and/or pesticides caused or made him more susceptible to autoimmune disease.
16. Whilst there is no dispute as to Mr Findlay’s service as outlined above and the Tribunal is satisfied as to the diagnosis of autoimmune disease, what remains in dispute is that during his service, Mr Findlay came into contact with herbicides and/or pesticides and that this contact caused or made him more susceptible to autoimmune disease.
17. It was submitted on behalf of the respondent that the hypothesis is threefold and that the Tribunal must determine whether (a) during his operational service Mr Findlay had exposure to harmful chemicals, for a sufficient time and to a sufficient degree; (b) the chemicals caused an increase in the frequency of anti-nuclear antibodies (ANA) and; (c) an increase in the frequency of ANA is a cause of autoimmune disease.
18. In support of this approach the respondent’s counsel relied on the evidence given by Dr McCullagh that there are several parts to the hypothesis. The Tribunal accepts the respondent’s submissions as outlined above and notes that the Evatt Report also refers to the degree of exposure in considering the likelihood of harmful health effects.
19. Both Dr McCullagh and Dr Ban-Hock Toh referred to studies which report on an increase in the level of ANAs in response to exposure to pesticides and herbicides. The question remains as to whether an increase in the frequencies in ANA’s is a cause of autoimmune disease.
20. The initial issue to be decided is whether Mr Findlay was exposed to herbicides and/or pesticides during his service.
The Evidence
21. The applicant’s evidence was that he was posted to the RAAF 9 Squadron at Vung Tau, South Vietnam on 1 April 1967 as a Leading Aircraftman in the mustering of motor transport driver and then posted to base support flight on 22 September 1967 where he remained until he returned to Australia on 9 April 1968. His transport duties included the re-fuelling and de-fuelling of aircraft, lifting of equipment with forklift trucks, aerial cranes, handling supplies, parts and materials. He gave evidence that he periodically handled various drums which he understood contained a variety of oils, chemicals, solvents and hydraulic fuels. He said that on occasions, perhaps once a month, he pumped chemicals from one drum to another. Mr Findlay was unable to identify the nature of the chemicals in the drums, but said that “you could smell the chemicals everywhere”.
22. Mr Findlay recalled that there were various sorts of drums of different colours, namely black, red with white bands as well as yellow and blue drums. He had no idea why the drums were coloured differently. Mr Findlay recalled pumping some sort of chemical from the back of a utility into a tank on a chopper which was rigged with pipes on each side.
23. A photograph was tendered of him standing on the back of a truck with a Vietnamese local showing them emptying liquid from red drums marked with a white band. Mr Findlay recalled the incident which he said took place in around June 1967. When asked whether he could recall what was in the drum Mr Findlay responded “chemicals, I believe”. He said that usually they would take “stuff like that to a US army dump and we dumped all sorts of rubbish there – what wasn’t required. But in this and on a few other occasions we were told to take these drums to an area of - well, actually it was on the way to the dump but it was in the beach area and dumping these chemicals in this area.” Mr Findlay further said that he could smell chemicals whilst tipping the contents of the drum onto the ground. Mr Finday said that it did not smell like aviation fuel, but “it smelt like a sort of creo-sote smell to it. I don’t know how you would explain it – it just smelt like chemicals - like flyspray or like that chemical smell.”
24. Mr Findlay also recalled other occasions when he was required to unload “material, including drums and chemicals from PA & E trucks that came in. It was an American US Air Force truck and we liased with them too and helped them to unload that material there. I am not too sure what we did with it; I can’t remember it.” He recalled that one drum was damaged and that it was put onto another separate truck. Mr Findlay said that the contents of the drums “had a chemical smell”.
25. Mr Findlay further recalled transporting drums on trucks to Nui Dat. He said that he did not wear any protective equipment whilst handling the drums.
26. When Mr Findlay was asked whether he observed any helicopters or planes spraying in the vicinity of Vung Tau base, he initially said that he probably did, but had not taken much notice. He subsequently said that he did see helicopters spraying chemicals. He had assumed that they would have been spraying chemicals but did not have any specific knowledge of this. He concluded that they were spraying for defoliation purposes or mosquito control. Mr Findlay stated that the domestic and working areas would be sprayed “probably every third night” and had seen “the mist and the fogging going on”. He smelt the “pungent odour of chemicals – more exaggerated of course at that time, but it didn’t matter where you went you could always smell in the air, chemicals”. Mr Findlay stated under cross-examination that he had been within 20 metres of the sprayed area. When asked how far he was from the perimeter of the base where spraying had occurred, Mr Findlay responded that the nearest gate was some 500 metres distance and the furthest gate a couple of kilometres.
27. A photograph was tendered showing Mr Findlay standing in ankle deep water following a heavy downpour of rain, flooding an area that he said “would have been sprayed”.
28. Mr Findlay further stated that he travelled on occasions from Vung Tau to Nui Dat by truck and came across the same smell described earlier through the area that he travelled in South Vietnam.
29. Mr Findlay stated that there was an occasion when he went swimming whilst waiting to rendezvous with some PPR. He said that it was common knowledge amongst the American crew of the vessel that it was a heavily contaminated area which was evident, he said “by the defoliating effect on the river banks”.
30. The Tribunal received in evidence a report written by Air Commodore J T Owens who had investigated the claims made by Mr Findlay that he was exposed to various chemicals during the course of his service.
31. In the report Air Commodore Owens stated”
“No 9 Squadron started spraying chemicals in late 1966 on a small scale using equipment supplied by the US Army. Trials with improved spraying equipment, modified by engineering staff at No 9 Squadron, began in November 1967, proving successful and making way for more regular spraying operations. …
The missions were flown at very low altitude (about 100 feet) and very slow speed (about 60 knots) and the chemical was blown into the aircraft, covering the occupants and all equipment. One aircraft at a time was fitted with the spray kit and was used for about a week and the chemical tank was not purged between flights leaving the aircraft contaminated. Refilling the chemical tank was performed from drums using a small pump and Mr Findlay may have been involved in this process during his posting to No 9 Squadron. Most spraying operations were conducted near the Australian Task Force Headquarters at Nui Dat and very little, if any, was conducted at Vung Tau. Refilling the chemical tank was therefore most often performed away from Vung Tau by Australian Army personnel from drums on the back of trucks.”
32. It was Air Commodore Owens’ conclusion that Mr Findlay would probably not have been required to handle drums of chemicals used for defoliation. He stated that the Commanding Officer, Base Support Flight from February 1968 recalled one occasion when CS gas was blown onto the base at Vung Tau from operations against the Viet Cong in the Long Hai mountains near Vung Tau. The Commanding Officer could not recall whether this happened before Mr Findlay left Vung Tau on 9 April 1968, but stated that there always seemed chemicals or the smell of chemicals in the area.
33. Air Commodore Owens further stated that spraying at Nui Dat started in 1966 using Malathion and DDT which was sprayed by air every three weeks.
34. In response to Mr Findlay’s claims that he was exposed to herbicides from the spraying by knapsack of the perimeters of the base to keep the area free of vegetation, Air Commodore Owens confirmed that from February 1968 the base area was sprayed with insecticides (pesticide for mosquitos) which was done by US Army personnel and that it was possible that US Army personnel sprayed the surrounds of the base with herbicides from vehicles or backpacks. The Commanding Officer confirmed that there was “a constant presence of chemicals of some sort in the area”..
35. It was Air Commodore Owens conclusion that whilst herbicides were not used by No 9 Squadron to spray vegetation in the area around Vung Tua, Mr Findlay may have been exposed to herbicides during aircraft refuelling operations or perhaps he was called upon to refill the chemical tank in a helicopter at Vung Tau for a spraying operation. He confirmed that the base at Vung Tau was regularly sprayed with pesticide to control malaria and other vermin. The then Commanding Officer recalled the spraying and another occasion when some CS gas was blown onto the base from an operation in nearby mountains. He also said that the smell of chemicals was prevalent around the base and that the US Army personnel may have used herbicides to control the growth of vegetation around the base.
36. Mr C F Cotter, Retired RAAF Officer, and a senior engineering officer stationed at Vung Tau with 9 Squadron during Mr Findlay’s period of service said that whilst he was not aware that the Vung Tau base was regularly sprayed for malaria and vermin, it was reasonable for this to have been done and that a pesticide would have been used.
37. Mr Cotter’s duties involved the supervision and maintenance of helicopters. He informed the Tribunal that he was involved in the test spraying of an area at Vung Tau with a mixture of water and shark repellent from aircraft in the Vung Tau area during the relevant service period of Mr Findlay. When Mr Cotter was shown the photograph of Mr Findlay emptying a drum from the back of a truck, he suggested the drum was an old fuel drum particularly given its deteriorated state. Mr Cotter did not recall seeing any spraying from swing fog machines. He remembered “the normal smell of aircraft operations” rather than a chemical smell as reported by Mr Findlay.
38. Mr Cotter was asked about his evidence given to the Evatt Royal Commission about spillages and leakages of herbicides and/or pesticides in the aircraft. Whilst Mr Cotter could not specifically recall giving the evidence, he did not dispute it. He confirmed that it was his experience and evidence that there was likely to be herbicides or insecticides within a helicopter or other aircraft and that people getting onto the aircraft or into the helicopters after they had landed were likely to come into contact with the chemicals. It was Mr Findlay’s evidence that he may have come into contact with such chemicals during his aircraft re-fuelling duties.
39. Mr Cotter confirmed that chemical sprayed from an aircraft could have been blown or sucked into the cabin of the aircraft, but he could not recall whether Mr Findlay was involved in the hand-pumping of fuel for the aircraft.
40. It was stated in the Evatt Report that the defoliation program developed into a massive operation during 1965, 1966 and 1967 (page I -28). The Report stated that the defoliation program had three substantial purposes (a) offence - the removal of vegetation; (b) crop destruction; (c) defoliation for defences by clearing the perimeters of allied bases, supply routes and supply depots and by establishing lines of vision of areas to be defended (I-28).
41. It was further stated in the Report (I-33, 34) that the aircraft spraying of insecticides was substantially performed by the US Air Force. The Report stated that the chosen insecticide was Malathion that in addition pyrethrins and DDT were used.
42. Chapter 4 of the Report is dedicated to the exposure effects of the chemical agents used. There is discussion in that part of the Report as to the exposure levels of soldiers from the defoliation programs which included aerial, perimeter and crop spraying.
43. In relation to the rates of aerial application of herbicide, the Report states that even assuming that 40% reached ground level this would equate to the equivalent of 600 mgs per square metre:
“if a soldier were lying naked on the ground he would present an area of about square metre of skin to the falling droplets and accordingly may be exposed to 600 mgs of 2, 4-D and 2,4, 5-T. Assuming a body weight of 70 kgs gives a dose of about 8.5 mgs per kilogram body weight. However by the degree of absorption by the skin must also be considered. Assuming the upper limit of skin absorption of 6 per cent then the absorbed dose would be 0.5 mgs per kilogram body weight. This is only about 1 per cent of the estimated minimum dose required to produce toxicity.
Dosage due to contact with sprayed plants may be expected to be less than via direct exposure due to the uptake of 2, 4, 5-T into plants and its degradation on the forest floor.” (IV-108)
44. There is further discussion about the absorption rate from inhalation and skin contact from a backpack sprayer following a 3-hour spraying period. For an average 65 kg man it was calculated that a likely absorption dose was 0.077 mgs per kilogram.
45. The Report notes that to date no long term health effects have been detected in the inhabitants of the contaminated “zone B”.. As soldiers would probably have had much less exposure to sprayed soil than the inhabitants, the Report concludes “it is difficult to see how long term health effects could be observed in troops as a result of TCDD exposure to soil”.
46. The Report further states that any intake through drinking water or passing through defoliated areas after several days had elapsed would be negligible. Because of the expected percentage of sprayed herbicides that would reach ground level following immediate spraying, it was also unlikely that contact from walking through vegetation would result in sufficient harmful doses.
47. The Report also states that it is unlikely that any toxic concentrations of TCDD through food would have been experienced, and further “that respiratory exposure to TCDD would have been negligible (IV-112).
48. The Report comments on the rate of skin absorption for TCDD which it assumed was the same for 2, 4, 5-T and calculating the rate of exposure per kilogram body weight per day concluded “… that it is very unlikely that any Australian received toxic doses of TCDD as a result of perimeter spraying with agent orange in 1966”. (IV -113)
Submissions and Findings
49. It was submitted on behalf of the respondent that the Report at IV-221 confirms extensive use of insecticides at Vung Tau where it is stated:
“Approximately 100 Vietnamese operators were engaged in full time work at Vung Tau spraying the base at 1ALSG with insecticides. The base was cold fogged with a misting device by the operators working for Pacific Architects and Engineers, a corporation contracting to the US military.”
50. In response, it was noted that there is no confirmation that this spraying was conducted during Mr Findlay’s period of service at Vung Tau.
51. It was contended on behalf of the respondent that the material before the Tribunal, taken as a whole, does no more than leave open the possibility that Mr Findlay may have been exposed to chemicals.
52. The Tribunal is however reasonably satisfied on the balance of probabilities that Mr Findlay had some exposure to insecticides and herbicides during his 12 month period of operational service in Vietnam.
53. The Tribunal finds that Mr Findlay presented his evidence to the best of his recollection given that the events occurred well over 30 years ago. The Tribunal accepts Mr Findlay as an honest witness. When pressed under cross-examination as to his recollection of particular events Mr Findlay answered truthfully and made concessions that were obviously against his own interests. For example, he conceded that he had no recollection of actually witnessing aerial spraying.
54. Although there is doubt as to the extent of Mr Findlay’s contact with chemicals, there is evidence of his exposure, for instance, Air Commodore Owens concedes that Mr Findlay may have been involved in the re-fuelling of contaminated aircraft. Whilst there is also some doubt as to the actual nature of the contents of the liquid poured from the red drum with the white band as depicted in the tendered photograph, the Tribunal accepts Mr Findlay’s evidence that the contents did not smell like aviation fuel and had a “chemical like smell”.
55. There is also evidence of the spraying of chemicals to control mosquitos and other vermin, not only from Mr Findlay, but also from Air Commodore Owens and in the Evatt Report. Whilst Mr Cotter had no specific recollection of such spraying, he was prepared to concede that a pesticide may have been used as a mosquito repellent.
56. It was Mr Findlay’s evidence that both the perimeter and domestic areas of the base were regularly sprayed from knapsack fogging machines and that there was the smell of chemicals in the air most of the time. Mr Findlay stated that he would been some 20 metres distance from the spraying of the domestic area.
57. Whilst the Tribunal accepts that Mr Findlay may have been exposed to chemicals of some type, it agrees that the degree of exposure is important in assessing the reasonableness of the hypothesis. When examining the prospect of adverse health effects from indirect exposure to chemicals, the Evatt Report concluded at page IV- 237:
“In respect of indirect exposure the Commission is satisfied that, whilst the likelihood of some such exposure may be high, a consideration of the likely dose levels reveals beyond any doubt that such exposure or exposures may be safely ignored for the purpose of considering whether resulting adverse health affects may have arisen.”
58. As stated by Heerey J in Stafford and Repatriation Commission (supra):
“If a hypothesis is raised by some of the facts, it is the duty of the Tribunal to consider the whole of the material in order to be satisfied that the hypothesis is reasonable.”
59. The hypothesis upon which Mr Findlay relies is that contact with herbicides and/or pesticides is the cause of his autoimmune disease in that it made him more susceptible, is he contends, supported by the evidence of Dr McCullagh. In his report dated 25 February 2003 he stated that the insecticides and herbicides to which Mr Findlay was exposed in the course of his Vietnam service:
“… resulted in chronic damage to the repertoire of T suppressor cells in his immune system. This damage impaired the capacity of his immune system to down regulate certain clones of anti-self-reactive T cells in the event that such cells were, at some later time, to be activated.”
and further:
“… any subsequent development of autoimmune disease would have been a consequence of the preceding service-related “first stage” (damage to the regulatory T suppressor cell component of the immune system). That is, the veteran’s risk of developing an autoimmune disease had been substantially increased by the earlier damage to his immune system”.
60. Dr McCullagh then summarised published scientific evidence which he said pointed to:
“the capacity of pesticides to damage the immune system, in particular T suppressor cells.”
61. The studies referred to by Dr McCullagh did not find an increase in the incidence of autoimmune disease but rather an increase in the level of antibodies (ANAs). Dr McCullagh conceded in the course of cross-examination “I was primarily looking at autoimmune antibodies and not autoimmune disease”. He further conceded that antibodies are present in many normal people and that the studies to date had not measured this factor.
62. Dr McCullagh referred to two substantial studies, one conducted in the Netherlands in 2001 and one in the United States in 2002 regarding the potential association between autoimmune disease and occupational exposures to chemical agents. In conclusion Dr McCullagh said that the associations are unproven and merely hypotheses considered worthy of further investigation and research.
63. Dr McCullagh confirmed during cross-examination by Mr Hanks that the studies that indicated an increased level of antibodies were in respect of those persons who had had long term exposure and in some cases lifetime exposure to some particular pesticides. Further studies were not able to identify which particular pesticides resulted in an increase in the level of anti-nuclear antibodies (ANAs). Whilst the studies revealed an increase in the level of ANA’s they did not report any increase in autoimmune disease according to Dr McCullagh. Dr McCullagh further informed the Tribunal that studies had to date had not been able to quantify the intensity of exposure involved.
64. The Tribunal accepts that Dr McCullagh is an eminent expert in the area of immunology and has written numerous scientific and medical papers on the topic of immunology and chapters on autoimmunity and autoimmune disease.
65. Professor Ban-Hock Toh, Chair of the Department of Pathology and Immunology, whose stated area of expertise is autoimmune antibodies was called to give evidence on behalf of the respondent. Whilst Professor Hock-Toch confirmed that the hypothesis outlined by Dr McCullagh being a possible link between exposure to pesticides and autoimmune disease is recognised as being worthy of research, he said there is no evidence to suggest any connection, which at this stage pending further investigation, is only a possibility.
66. Professor Ban-Hock Toh said that whilst the experimental studies referred to by Dr McCullagh reported an increase in the level of antibodies in response to exposure of herbicides and pesticides, they did not find any increase in the occurrence of autoimmune disease. Professor Ban-Hock Toh pointed out that the studies failed to recognise that antibodies are present in approximately 30% of the population and that none of the studies had accounted for such variables. Professor Ban-Hock Toh noted that whilst the studies suggest a link between ANA’s in animals, there is no evidence to suggest a link with autoimmune disease in humans. Further, he commented that the studies to date concern long term rather than short term exposure to pesticides.
67. Professor Ban-Hock Toh concluded in his report dated 12 September 2003:
“In the specific case of Mr Findlay, it is highly unlikely that exposure to pesticides or herbicides during a 12 month tour of duty in Vietnam could have triggered the development of SLE more than 20 years later. Development of ANA appears to require lifetime exposure, even if one assumes that the increased incidence is significant given the occurrence of this antibody in normal individuals. In the case of SLE that developed in a father and daughter reported by Beer et al, the condition appears to have developed soon after exposure but the causal linkage has been questioned.”
Determination
68. The Federal Court in the decision East v Repatriation Commission (1987) 16 FCR at 533 approved the following passage from the decision of the Veterans’ Review Board in Stacey (unreported, 26 June 1985) and quoted by the Tribunal in Re Dell and Repatriation Commission (1986) 5 AAR 253 at 254 –255:
“A hypothesis may be conveniently defined as: `proposition made as basis for reasoning, without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption’: (The Concise Oxford Dictionary).
….
The addition of the word `reasonable’ would however seem to imply that what is required is more than a mere hypothesis. In the opinion of the Board, to be reasonable, a hypothesis must possess some degree of acceptability or credibility – it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be `raised’ by material before the Board, we think it must find some support in that material – that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis. At the same time, however, a hypothesis may be reasonable without having been proved (either on the balance of probability or beyond reasonable doubt) to be correct as a matter of fact. Were it otherwise, it would no longer be a hypothesis but would have been elevated to some higher status. Accordingly a connection asserted by a hypothesis to exist between death or incapacity and service may still be reasonable even though theoretical, and it may be theoretical in either or both of at least two senses: by postulating a known medical fact but in circumstances not known to have definitely existed in the instant case; or by postulating a medical principle which science is not yet able to definitely prove but is unable to describe as unreasonable.”
69. The Court in East (supra) stated at 533:
“… A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.”
70. The approach in East was confirmed by the Court in Repatriation Commission v Bey (1997) 79 FCR 364 at 372:
“Any doubt that attends the status of East as a correct exposition of the law relating to s120(3) should be expelled. This Court re-states the position established by East, Bushell and Byrnes. A “reasonable hypothesis” involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities. That understanding of the expression gives force to the word “reasonable”, is strongly supported by the history of the relevant provisions, and accords with the intention appearing in the Minister’s second reaching speech and with authority.”
71. The following observation was made by Emmett and Allsop JJ in the decision Bull v Repatriation Commission (2000) 188 ALR 756 at 761:
“It is important to understand the following about East.. The Court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable. The material must point to the connecting hypothesis. …
There is no doubt that the Tribunal is obliged to look at all the material, not just some of it.”
72. The High Court in the decision of Bushell v Repatriation Commission (1992) 175 CLR 408 stated at 414:
“The material will raise a reasonable hypothesis within the meaning of s120(3) if the material points to some fact or facts (“the raised facts”) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true. Clearly enough, a relevant consideration in forming an opinion whether a particular hypothesis is reasonable or whether, as a matter of common or medical experience, the occurrence of an injury etc. of the kind sustained by the veteran is commonly accompanied by or associated with the occurrence of raised facts of the kind which constitute the relevant incidents of the service of the veteran. However, a hypothesis may still be reasonable even though such an accompaniment or association is not demonstrated or even if it is shown to be uncommon. So, in determining whether a hypothesis is reasonable for the purposes of s120(3), it is not decisive that a connexion has not been proved between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran’s service. Nor is it decisive that the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists.”
Their Honours went on to state that:
“… the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge. Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable
73. Justice Beaumont in Repatriation Commission and Webb (1987) 76 ALR 131 at 135 stated:
“The exercise is not one of balancing or weighing the respective merits of a range of professional opinions. Rather, it is a case of determining whether the particular theory has a rational foundation.”
74. It was submitted by Mr Webster that the hypothesis put forward by the applicant is reasonable and is supported by a medical practitioner, eminent within the particular specialty. It was suggested that although another eminent practitioner, namely Dr Ban-Hock Toh, has a different view, the Tribunal cannot reach an opinion that the hypothesis is immaterial, absurd or ridiculous and unsupported by medical opinion, it must accordingly find that it is reasonable.
75. Professor Ban-Hock Toh’s view is however, that there is no evidence to support the hypothesis. He contended that the hypothesis was a mere possibility, worthy of research. He said that on the basis of the studies reported to date, there was no material to support the hypothesis. The studies were concerned with long term exposure to pesticides and an increased level in ANA’s as distinct from an increased occurrence of autoimmune disease.
76. In determining the reasonableness of the hypothesis, the Tribunal is obliged to consider the whole of the material before it, which material “must point to, and not merely leave open a hypothesis as a reasonable hypothesis” (see East (supra) at 532). Further a reasonable hypothesis must be more than a possibility and consistent with the known facts.
77. As stated by the Tribunal in Repatriation Commission and Pugsley (1987) Decision No 3164:
“We agree with the reasoning of the Tribunal in East, and accept its conclusion. Further, we reject the specific argument which was put to us that `a working hypothesis’ being investigated by reputable scientists in reputable institutions is necessarily a `reasonable hypothesis’ within the meaning of sub-section 120(3).”
78. The Court in East (supra) stated at 533:
“The necessity for quantitative evidence in a particular case must depend upon the nature of the hypothesis being expounded. For example, if a Tribunal accepts medical evidence that condition B may be caused by any degree of exposure to factor A, that the veteran was exposed to Factor A and that he or she subsequently developed condition B, it would be wrong to reject the claim because of an absence of evidence as to the extent of the exposure. The hypothesis itself makes quantity irrelevant. If, on the other hand, the evidence is that exposure to quantity X of factor A may cause condition B, the hypothesis cannot be described as reasonable unless there is reason to believe that the veteran was exposed to factor A to the extent of quantity X.”
79. The evidence presented to the Tribunal suggests that the degree of exposure is a relevant factor in determining the likelihood of any causal connection between Mr Findlay’s exposure and the development of his autoimmune disease, particularly as Dr Ban-Hock Toh noted, a period of over 20 years had elapsed between Mr Findlay’s service and the onset of his disease.
80. The evidence tendered from the Evatt Report also suggests that the degree of exposure, namely the frequency and extent of exposure are relevant factors in considering the likelihood of resulting adverse health effects on an individual. Another factor which both medical experts agreed was relevant was the presence of ANAs in normal healthy individuals which was not a factor taken into account in any of the studies referred to. These studies referred to a possible connection between exposure to chemicals and the presence of ANAs rather than the development of autoimmune disease.
81. When all the material is considered as a whole, the Tribunal determines that there is insufficient evidence connecting Mr Findlay’s autoimmune disease with the circumstances of his operational service and that such a connection is at best no more than a possibility which is left open.
82. In accordance with the above authorities, a mere possibility is manifestly inadequate for a finding of a reasonable hypothesis.
83. The applicant having failed to satisfy the Tribunal of a causal connection between his autoimmune disease and his operational service, the Tribunal accordingly dismisses the appeal.
I certify that the 83 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing 5 and 6 November 2003
Date of Decision 12 February 2004
Counsel for the Applicant Mr C Webster
Solicitor for the Applicant Wallace, Wilkinson and Webster
Counsel for the Respondent Mr P Hanks QC., and Mr Brian Morgan
Solicitor for the Respondent Australian Government Solicitor
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