Haire and Repatriation Commission - [2001] AATA 28

DECISION AND REASONS FOR DECISION [2001] AATA 28

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N1998/1340

VETERANS' APPEALS DIVISION          )
           Re      Beatrice HAIRE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member Dr P D Lynch, Member

Date22 January 2001
PlaceSydney

Decision       The Tribunal – 1. Sets aside the decision of the Respondent dated 10 June 1997 that determined that the death of James Haire ("the Veteran") was not war-caused; and 2. Substitutes therefor its decision that the Veteran's death was war-caused, pursuant to s8 of the Veterans' Entitlements Act 1986, and that war widow's pension is payable to Beatrice Haire with effect on and from 7 February 1997.
  ..............................................
  M T Lewis
  Presiding Member
CATCHWORDS
VETERANS' AFFAIRS – war widows pension – whether hairy cell leukaemia war-caused – no Statement of Principles – Veteran worked as radar mechanic during operational service –whether reasonable hypothesis that radar exposure caused hairy cell leukaemia – whether link between hairy cell leukaemia and service too tenuous or fanciful - whether hypothesis disproved beyond reasonable doubt
Veterans' Entitlements Act 1986 – ss 120(1), 120(3), 196B
East v Repatriation Commission (1987) 16 FCR 517
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Stares (1996) 66 FCR 594
Repatriation Commission v Bey (1997) 149 ALR 721

REASONS FOR DECISION

22 January 2001 Mrs M T Lewis, Senior Member Dr P D Lynch, Member

This is a review of a decision of a delegate of the Repatriation Commission dated 10 June 1997 which determined that the death of James Haire ("the Veteran") was not causally related to his service. The Veterans' Review Board ("VRB") affirmed that decision on 23 June 1998. Beatrice Haire ("the Applicant"), as the widow of the Veteran, lodged an application for review by this Tribunal. All applications for review were in time. Therefore the earliest effective date for payment of a war widow's pension to the Applicant in the event that her application to this Tribunal is successful is 7 February 1997.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The following documents were tendered as evidence on behalf of the Applicant –

Reports of Professor R Fox, oncologist, dated 14 April 1999, 6 July 1999, 11 February 2000, 15 March 2000, and 15 August 2000 (exhibit A);
Curriculum Vitae of Professor Fox (exhibit B);
Photographs identifying alleged radar equipment (exhibit C).

The following documents were tendered as evidence on behalf of the Respondent –

Reports of Professor J Levi, oncologist, dated 15 June 2000 and 22 September 2000 (exhibit 1);
Report of Mr B O'Keefe, historian, dated 28 June 2000 (exhibit 2);
Letter from Mr D Wilson, executive officer of historical records from Department of Defence, dated 24 August 1999 with annexures (exhibit 3).

The Veteran was born on 21 March 1923. He served in the Royal Australian Air Force from 24 October 1942 to 5 March 1946 including service in New Guinea. This constitutes operational service for the purposes of the Veterans' Entitlements Act 1986 ("the Act").
The Veteran died on 11 March 1996 at the age of 72 years 11 months. His death certificate stated that septicaemic shock (24 hours) and biliary stasis/obstruction (24 hours) were the causes of his death. The post mortem indicated that he had hairy cell leukaemia with "almost complete neutropenia" (T16 p34). It is not in dispute that the Veteran died from complications of hairy cell leukaemia.
It is the Applicant's hypothesis that the Veteran's work as a radar mechanic during war service resulted in his exposure to electromagnetic radiation that caused hairy cell leukaemia, which then caused his death. It is the Respondent's case that the hypothesis is merely left open, and is not pointed to by the facts, because some of the critical facts underpinning the hypothesis were based on assumptions that could not be upheld on the evidence before the Tribunal. Those assumptions included the fact that the Veteran actually worked with radar equipment. Although that type of equipment was available during the War, it was submitted that it was not certain whether that equipment was present during the relevant time, and secondly that it necessarily resulted in exposure to radiation.
Pursuant to ss120(1) and 120(3) of the Act, the Tribunal is required to determine that the Veteran's death was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The Tribunal shall be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the Veteran's death was war-caused, if after consideration of the whole of the material, it is of the opinion that the material before it does not raise a reasonable hypothesis connecting the conditions with the circumstances of the Applicant's service.
The claim was lodged on 23 December 1996, after the amendment to the Act by s120A. However, no Statement of Principles has been determined and no notification has been given that the Repatriation Medical Authority proposes to make a Statement of Principles in respect of hairy cell leukaemia pursuant to s120A(4). Therefore, s120A(3) does not apply. In effect, the Tribunal must determine the matter pursuant to ss120(1) and (3) without having to meet the requirements of a Statement of Principles.
The evidence revolved around two fundamental issues; firstly, a technical issue of whether the Veteran worked with equipment that could potentially expose him to radiation, and secondly a medical issue of whether that exposure could cause hairy cell leukaemia.
evidence
Availability of Radar Equipment during the Veteran's Service
The Applicant tendered two photographs of alleged radar equipment that the Veteran worked on during his service (exhibit C). The Tribunal notes that the Applicant identified the Veteran in both those photographs by his physique. She said that he sent those photographs to his parents while he was still overseas but that no dates were recorded on the back of them.
Mr B O'Keefe provided an historical report dated 26 June 2000 for the purposes of these proceedings (exhibit 2), in which the following issues were raised;

The radar installations in which the Veteran was engaged in repairing in the RAAF and, the rated bandwidth of each piece of equipment;
The duties of a radar mechanic, especially with regard to the repair of radar installations;
Recorded instances of radar mechanics suffering injuries as a result of repairing radar installations.

The Tribunal notes that Mr O'Keefe based his findings with respect to microwave radiation only.

Mr O'Keefe noted that during most of the War, radar equipment operated in a range from 30 kilocycles up to, in general, UHF frequencies (300 to 1,000 megacycles). The UHF range, the representative wavelength (which was 1 metre at 300 megacycles), was above the microwave range. He identified that the wavelength range of microwave radiation varied from 0.001 metres [one millimetre] to 0.3 metres, and during the major part of World War II, the radar sets used by the RAAF radar units operated on wavelengths significantly longer than those in that specified range.
Mr O'Keefe reported that the RAAF had air warning and height-detecting radar in the microwave band in the latter stages of the war. This was supplied after the Japanese discovered a means of jamming the earlier types of RAAF air warning sets that operated on a wavelength of 1.5m, which was not in the microwave range. He said –
This sort of radar equipment was most useful 'for the detection of submarines and other small craft' and, accordingly, most microwave radar sets were manufactured for the Navy, while some were produced for the Army specifically for coastal defence purposes against enemy vessels. In regard to RAAF radar units, the section in the official history volume dealing with the development of microwave radar sets only refers to the RAAF at the end, and then only in a general context of the radar equipment that the Radiophysics Laboratory in Sydney and the Postmaster General's Research Laboratories in Melbourne produced for the Air Force during the war. Of the equipment mentioned, the wavelength of only one is noted – the Light-Weight Ground-Controlled Interception [LW/GCI] Marcks I and II - which used waves 1.5 metres long. However, it is stated on the following page that the Japanese found a way to jam radar equipment using this (1.5 metre) wavelength. This led, late in the war, to the development …of an Air-Warning and Height-detecting [AWH] radar for the RAAF and US Air Force which operated on a wavelength of 25 centimetres - that is, in the microwave range.
This piece of equipment is also mentioned in the history of RAAF radar where it is noted that the AWH operated on a frequency of 1,175-1,250 megacycles. A 'Represetative wavelength' for equipment using this wavelength was 30cms at 1,000 megacylces - again, just on the edge of the microwave range. This same history refers, as well, to an apparatus, AF/FRC-801, which was a microwave link, and to two other pieces of equipment that operated at frequencies above the UHF range. These were the H2S MKIII, which was used for target location and operated at 9,700 megacycles , and the SCR 717, which was an airborne sea search radar operating at 3,300 megacycles. While these apparatus may well have operated at microwave frequencies, it is not at all certain, that they, or the 'microwave link', were used in the World War II period, or, if they were, that they were used by radar stations.
As to whether the Veteran's radar station was equipped with the microwave AWH radar, Mr O'Keefe said the evidence was unclear. He noted that his unit, No. 343 Radar Station, was formed at Mascot on 17 November 1943 and moved to Queensland a month later. It was posted to Strauss field in the Northern Territory in August 1944, to the island of Morotai in the then Netherlands West Indies in February 1945, and then to Balikpapan in Borneo in June of that year. Professor O'Keefe examined the Operations Record Book but found nothing to indicate the type of equipment on which the Veteran may have worked. The only conclusion that he could make was that it was not impossible that his unit had the microwave AWH radar and that he may have worked on it.
In contrast, David Wilson, Executive Officer of Historical Records of the Airforce, did not consider that World War II radars operated in the microwave band. He also noted that the RAAF historical records did not hold technical records or any other records that related to the day to day activities of technicians (exhibit 3).
The Tribunal notes the Appendix of the monograph entitled Echoes Over the Pacific by Ed Simmonds and Norm Smith (Banora Point, 1995), (exhibit 3). This states that the types of Air Warning equipment used by the RAAF during World War II in the Pacific from Pearl Harbour, had frequencies ranging from 42.5 megacycles per second to about 207 megacycles per second, which the Tribunal understands is not in the microwave range.
medical evidence
Can radar exposure lead to hairy cell leukaemia?
The Tribunal had before it documentary evidence from two equally qualified medical experts on this issue. Professor R Fox is currently a Professor and the Director of the Department of Clinical Haematology and Medical Oncology at the Royal Melbourne Hospital. He prepared several reports for the purpose of these proceedings (exhibit A). Professor J Levi is the Director of the Department of Clinical Oncology at the Royal North Shore Hospital. He prepared two reports in response to the reports of Professor Fox (exhibit 1).
Professor Levi was of the view that hairy cell leukaemia was a variant of chronic lymphocytic leukaemia which arose from B cells within the bone marrow and was generally characterised by variable degrees of neutropenia and anaemia, and to a lesser degree by thrombocytopenia. Professor Fox, however, was of the opinion that the condition was a distinct and separate entity of a cell line that had some manifestations of lymphocyte and monocyte. He said that hairy cell leukaemia was potentially curable with a drug known as cholordeoxyadenosine and also showed positive long term remissions with interferon and splenectomy. However chronic lymphocytic leukaemia did not hold any of these phenomena, which indicated that it was of a very different biochemical nature.
In effect Professor Fox was of the opinion that a reasonable hypothesis was raised of the possible link between radar and the subsequent development of leukaemia. Based on his research of the literature, there were several references to this possibility, and although no specific mention was made of hairy cell leukaemia, and given that it was a rare disease, a reasonable hypothesis existed nonetheless. His conclusion was founded upon the following evidence (report dated 14 April 1999; exhibit A) –
The first of these papers is by Savitz and Calle entitled "Leukaemia and Occupational Exposures to Electromagnetic Fields". This was published in the Journal of Occupational Medicine…in 1987.
It reviews several recent surveys have presented data suggesting an increased risk of leukaemia among men in occupational exposure to electromagnetic fields. Eleven pertinent data sets were compiled in order to assess the consistency of this pattern and to identify those occupations most deserving of closer examination. …. These studies are inherently limited regarding the effect of electromagnetic fields due to the absence of exposure characterisation. Nonetheless, telegraph, radio and radar operations, power and telephone linesmen, and electrical and electronic engineers showed the most consistent results and warrant further study to ascertain potential occupational health hazards.
The next paper is by Marino…This was published ….in 1995. It notes a World War II era study involving the effects of electromagnetic fields emanating from radars and high frequency radios on the blood of exposed workers….Statistically significant correlations between increasing white cell count and average daily exposures, months of exposure and total duration to EMFs were found.
Professor Levi explained that the cause of hairy cell leukaemia was unknown. He noted the following with respect to the possible link between radiation exposure and hairy cell leukaemia in his report dated 15 June 1999 (exhibit 1) –
Radar is a form of microwave with a wave length shorter than low and extra low frequency electromagnetic energy…in relation to exposure to radar, a large study of naval personnel exposed to radar during the Korean war was published in 1980 (ref.Robinette CD et al. Effects upon health and occupation exposure to microwave irradiation (radar)……) This study involving 20,000 US enlisted naval personnel failed to demonstrate any association between radar exposure and the development of malignancies of any type. Subsequent studies have generally revolved around lower frequency electromagnetic wave energy and while a small number of positive reports have occurred from case control studies, the vast majority are negative. With particular reference to leukemia, several studies have raised the possibility of an association, but these have been very inconsistent and diverse. In an overview of this area undertaken by Heath CW…., 1996 which involved review of essentially all studies conducted up until that time, it was concluded that epidemiological data was weak and inconsistent and there were no coherent or reproducible findings from experimental or laboratory research to back up these epidemiological studies and it was therefore considered doubtful that any real biological link exists between electromagnetic frequency exposure and carcinogenity.
Consequently, Professor Levi was of the view that there was no "real evidence" to associate the Veteran's work as a radar technician and the subsequent development of his hairy cell leukaemia.
In response to Professor Levi's comments, Professor Fox in his report dated 6 July 1999 (exhibit A), noted that the literature to which Professor Levi referred was not conclusive; he said "therefore within our understanding of the reasonable hypothesis, I believe leaves open the question of the effects of radar and the subsequent development of a leukaemia such as hairy cell".
In his report dated 22 September 2000 (exhibit 1) Professor Levi identified that the hypothesis raised by Professor Fox related to ionising radiation raised a "completely separate argument" from his argument that referred to microwave irradiation. Professor Levi noted that microwave radiation was very high frequency radiation when compared with ionising radiation and was distinct in terms of physical properties and potential biological effects. He acknowledged that ionising radiation induced potential for carcinogenesis in relation to several malignancies and possibly certain leukaemias, but that present data in relation to the link between ionising radiation and chronic lymphocytic leukaemia was doubtful.
Professor Levi also explained that hairy cell leukaemia was a chronic indolent leukaemia that evolved over months to years and that it was quite possible that exposure to a causative factor may result in a latency period of many years before the ultimate clinical onset of the condition. He noted that there was no actual data to define latency periods for hairy cell leukaemia, as there were no accepted known causative factors. This meant that a latency period of more than 30 years was theoretically possible. However, Professor Fox said that it was possible that the Veteran's leukaemia was actually present many years prior to diagnosis and that if blood counts had been done at some earlier stage the condition could have been detected. He noted that the latency period from the time of radiation exposure to presentation ranged from 2 to 36 years for hairy cell leukaemia. He did not consider a latency period of 50 years was fanciful, incredible or impossible.
Professor Levi explained there was no quantifiable amount of exposure to ultra-high frequency radiation before development of leukaemia, (either in terms of a single dose or multiple smaller doses). He opined that carcinogenesis could occur as a result of exposure to a single dose or to multiple doses and it was not the actual amounts of exposure required, but other factors that determined the sensitivity of the individual to the exposure which could lead to the later appearance of a cancer. Professor Fox agreed that it was not possible to provide an exact dosage and duration of microwave band radiation that was required before it would ultimately lead to the development of hairy cell leukaemia.
submissions
It was submitted for the Applicant that, on the evidence of Professor Fox, a reasonable hypothesis has been raised. It was also submitted that both medical experts acknowledged that the causes of hairy cell leukaemia were unknown, so that only possible causes could be postulated in the circumstances. Hence, it was open to the Tribunal to consider possible causes of the condition on the evidence available.
It was submitted that it was erroneous for the Tribunal to reject Professor Fox's hypothesis as not reasonable. He was a qualified practitioner and an academic. Although he conceded the link was difficult to prove, nonetheless his evidence was that it was still possible that exposure to radar could cause the condition in question.
It was submitted that Professor Fox did not restrict the definition of radar to only microwave band length; his reference was to radar as electromagnetic fields. Although he referred to ionising radiation, that was not relevant here. By contrast, Professor Levi restricted the definition of radar to microwave band length but gave no justification for that qualification. It was submitted that the Tribunal should not direct its attention purely to microwave band length in considering the hypothesis.

However, it was also submitted that even if the meaning of radar was restricted to only microwave, there was still a reasonable hypothesis on the raised facts that such radar could have caused hairy cell leukaemia. The raised fact was that, on the evidence of Mr O'Keefe, the Japanese were able to block the low frequency radar that the servicemen were using. It was submitted that microwave band equipment was more likely than not introduced and utilised during the relevant time to overcome Japan's ability to block the other radar. It would have been nonsensical that it was developed and not utilised in the Asia-Pacific region. Mr Wilson's opinion noted that the RAAF did not hold technical records, yet he was able to say that no microwave radar equipment was held. As such, it was submitted that little weight should be given to that opinion.
With respect to s120(1) of the Act, it was submitted that a conflict of medical evidence was not sufficient to reject an hypothesis as not reasonable; Bushell v Repatriation Commission (1992) 175 CLR 408. It is not the function of s120(1) to choose between medical opinions. In any event, it was submitted that Professor Levi based his opinion on the lack of evidence about exposure from radar on the basis that radar was only microwave radiation.
It was submitted for the Applicant that the following "raised facts" were established on the evidence before the Tribunal:

The Veteran worked as a radar technician for a long period in close proximity to the radar installations. It was submitted that exposure occurred simply because the Veteran stood in very close physical proximity to radars in order to operate them, and there was no evidence to rebut that one had to stand in front of radar in order to be exposed.
The onset of hairy cell leukaemia was not until 1995. However, on Professor Levi's evidence, it was submitted that symptoms of that condition could manifest more than 30 years after exposure. This fact was therefore not disproved.
The Veteran died as a result of complications from hairy cell leukemia, and this was not in dispute.

It was submitted for the Respondent that the Applicant did not satisfy s120(3) in this case and therefore there was no need to visit s120(1) of the Act. It was submitted that it was open for the Tribunal to find that the uncertainty surrounding one of the links in the chain of causation in the hypothesis was sufficient to render the chain of causation too tenuous to support a reasonable hypothesis; Re Barrett and Repatriation Commission (AAT No 12513, 19 December 1997).
It was not the Respondent's case that the Veteran had to stand in front of or in the vicinity of the radar. It was submitted that the following evidence regarding the issue of exposure questioned whether s120(1) was satisfied -

Professor Levi's evidence that a prolonged latency period of greater than 30 years was theoretically possible, but there was no actual data to support any particular potential for duration of latency in relation to hairy cell leukaemia, particularly a latency period of 50 years.
In the event of exposure, on the evidence of Professor Levi it was not necessary to show symptoms if the Veteran was exposed to multiple low doses.

The Tribunal was asked to follow the reasoning in the decision of the Full Federal Court in the following passage in East v Repatriation Commission (1987) 16 FCR 517 (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.

It was submitted that even before one visited the question of whether a reasonable hypothesis was established, the crucial fact of exposure was an assumption that rendered the hypothesis too tenuous.

It was submitted for the Respondent that if s120(1) was satisfied, it was conceded that unknown aetiology did not render the hypothesis unreasonable on the existing facts. However at the same time, the facts that underpinned the hypothesis had to point to the hypothesis.
It was submitted that Professor Levi's exclusive focus on microwave radiation was understandable because, at the relevant time, radar generally was microwave. All concessions made by Dr Levi were related to ionising radiation, which was different to radar.
It was submitted that it was conceivable that the Veteran did work on microwave radar equipment but it did not necessarily follow that he was exposed to radiation.
consideration of evidence and findings of fact
The Tribunal is reasonably satisfied that hairy cell leukaemia was the primary or underlying cause of the Veteran's death, notwithstanding that he suffered septicaemic shock prior to his death. The Tribunal understands that that was caused by the Veteran's hairy cell leukaemia.
The Tribunal notes that the evidence regarding the Veteran's service location and the equipment he used is incomplete and ill defined. However, because of the then secret nature of radar and the radar units during World War II, it is the best evidence available.
Moving to the issue of whether the Veteran's death was war-caused, s120 describes the standard of proof in determining whether an injury is war-caused. In Byrnes v Repatriation Commision (1993) 177 CLR 564 the Court summarised the relationship between s120(1) and s120(3) as follows ( at 571):
(1) First sub-s (3) of s 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war-service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not an issue at this point.

The Court went on to say that if a reasonable hypothesis was established, then s120(1) was applied.

Applying the test outlined in Bushell v Repatriation Commission (supra) , the Tribunal must first consider whether the evidence raises a reasonable hypothesis within the meaning of s120(3) of the Act. The Tribunal must consider whether the evidence points to some fact or facts ("the raised facts") which support the hypothesis and would allow the hypothesis to be regarded as reasonable if the raised facts are true.
The Tribunal considers that the following "raised facts" are established on the evidence before it –

The Veteran was employed as a radar technician during his operational service, and during the course of his duties he worked in close physical proximity with radar equipment;
Microwave radar equipment was used during the latter stages of World War II in the Asia-Pacific region and the Veteran worked with Air Warning and height-detecting radar in the microwave band, and therefore radiation exposure was from both radio frequency and microwave radiation;
Hairy cell leukaemia could be caused or contributed to by radar exposure – specifically, exposure to electromagnetic fields.
The Veteran suffered hairy cell leukaemia, the onset of which was around 1995 and he died as a result of the complications of that condition;

It was submitted for the Respondent that some of the raised facts outlined above were based on assumptions and accordingly, a reasonable hypothesis was not raised on the evidence. The Full Federal Court in Repatriation Commission v Stares (1996) 66 FCR 594 referred to a passage from the judgment of Mason CJ, Gaudron and McHugh JJ in Byrnes v Repatriation Commission (supra) at 569, viz.-
In some cases, the hypothesis may assume the occurrence or existence of a 'fact'. That in itself does not make the hypothesis unreasonable.

The Full Federal Court in Stares expanded further (at 601) –

By their saying that `the material must point to some fact or facts' their Honours were not erecting a requirement that each element in the hypothesis must be supported by evidence tending to establish it. Such a requirement would convert the hypothesis to a prima facie conclusion.
...
Nor do we understand the High Court in Byrnes' case to say that an assumption is only permissible at the stage of determining whether or not an hypothesis is reasonable and we see no good reason why the permissible use of an assumption should be confined to that stage in the process.
The question s120(3) requires to be asked is whether all or some of the facts raised by the material before the decision-maker gave rise to a reasonable hypothesis connecting the veteran's injury with war service: see Byrnes' case at 571. An affirmative answer to that question is not necessarily dependent upon the hypothesis being free from assumptions about a particular fact or facts. Whether the circumstance that a particular fact is assumed leads to the conclusion that the material before the decision-maker does not give rise to a reasonable hypothesis connecting a disease with the circumstances of the particular war service must depend upon all the circumstances of the case in question.
In the present case the learned primary judge did not hold that a reasonable hypothesis for the purposes of s120(3) may be raised by an assumed fact in isolation. The assumed fact was to be considered by the decision-maker in the light of all the other material. Much of that other material bore directly upon the hypothesis.

In Repatriation Commission v Bey (1997) 149 ALR 721 (at 724-5) Northrop ACJ, Sundberg, Marshall and Merkel JJ said –
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 the hypothesis are disproved beyond reasonable doubt, or the truth of 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 CLR 570) and Critch v Repatriation Commission (1996) 43 ALD 574 at 577.

The Full Court in Bey also held that a reasonable hypothesis involves more than a "mere possibility"; it is an hypothesis that is pointed to by the facts, even though not proved on the balance of probabilities.

Taking into account the evidence before the Tribunal and the relevant case law (supra) the Tribunal concludes that a reasonable hypothesis has been raised on the following facts, which are not contrary to scientific fact, or obviously fanciful or untenable –

The Veteran, as a radar mechanic, would have been in close proximity to some radar installations (see photograph – exhibit C – in which the Veteran was identified by the Applicant). While it is impossible to conclude from the photograph that the Veteran was operating microwave radar equipment, nonetheless the fact is raised that he worked within close proximity of radar installation equipment.
On the evidence of Mr O'Keefe, the RAAF had air warning and height detecting radar in the microwave band in the latter stages of World War II. Furthermore,it was not impossible that the Veteran's radar station had the microwave AWH radar and that the Veteran may have worked on it. Although there are uncertainties as to when and where the Veteran served, the Tribunal considers this evidence to be more than a "mere possibility" – it is pointed to by the facts. The Tribunal also notes that there are no technical records to indicate the types of equipment on which the Veteran worked. However what is known on the evidence of Mr O'Keefe is that the Japanese discovered a means of jamming the earlier types of radar sets which did not operate in the microwave range. Accordingly it was more than just a "mere possibility" that microwave radar equipment, as an improved form of radar equipment, was utilised, and that the Veteran used or worked with that equipment during the course of his duties.
On the evidence of Professor Levi, there is a significant difference between ionising and non-ionising electromagnetic radiation. Ionising electromagnetic radiation is known to break chemical bonds, thereby being capable of disrupting cellular D.N.A. and as such can cause neoplastic growth. Non-ionising radiation does not have this property, but is known to have a biological effect on living tissue. Professor Fox submitted and quoted from two articles detailing the abovementioned effect. This demonstrates to the Tribunal's satisfaction that this evidence is not "too tenuous" to support the hypothesis.
On the evidence of Professor Fox, a relationship existed between radar exposure and the subsequent development of hairy cell leukaemia. The Tribunal notes the doubts expressed by the Respondent on this issue on the basis of Professor Levi's evidence. Although there is a conflict of medical opinion in respect of that view, that does not make the hypothesis unreasonable; Bushell (supra at 414-416). The Tribunal notes that both doctors have relevant expertise in the field. The Tribunal also notes that although the latency period for hairy cell leukaemia is said to be 2 to 36 years, Professor Levi conceded that theoretically a greater latency period for the condition was possible. An hypothesis can be reasonable without being proved and in that sense may be theoretical; per Nicholson J in Repatriation Commission v Bey (supra) at 310 citing East (supra) at 531, 507; Bushell (supra) at 414-416.

The Tribunal finds that the raised facts point to the hypothesis and do not merely leave the hypothesis open; East v Repatriation Commission (supra). On all the evidence the Tribunal finds that, pursuant to s120(3) a reasonable hypothesis has been raised.
Moving now to s120(1) of the Act, the question is then whether the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the Veteran's death was war-caused. Applying Byrnes (supra) at 571, this can occur in two ways; either the facts used to support the hypothesis are disproved beyond reasonable doubt, or a further fact arises that is inconsistent with the hypothesis, and this fact is proved beyond reasonable doubt. The Tribunal finds that neither the facts supporting the hypothesis have been disproved nor are there any other facts raised that are inconsistent with the facts raised in the hypothesis. Therefore the Tribunal is not satisfied beyond reasonable doubt that there is no sufficient ground for finding that the Veteran's death was war-caused.
Therefore the Tribunal will set aside the decision of the delegate of the Respondent dated 10 June 1997. In substitution therefor the Tribunal decides that the death of James Haire was war caused pursuant to s8 of the Act, and that war widow's pension is payable to the Applicant on and from 7 February 1997.

I certify that the 47 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis
Signed:         .....................................................................................
  Associate
Date/s of Hearing  23 August 1999, 23 October 2000
Date of Decision  22 January 2001
Counsel for the Applicant        Ms Claire Smith
Solicitor for the Applicant         Cutler, Hughes & Harris
Counsel for the Respondent    n/a
Solicitor for the Respondent    Mr Richard Wallis