Jean Mahoney and Repatriation Commission - [2015] AATA 379

[2015] AATA 379

Division Veterans' Appeals Division

File Number

2013/2518

Re

Jean Mahoney

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Senior Member Bernard J McCabe
Dr M Denovan, Member

Date 29 May 2015

Place Brisbane
The decision under review is set aside. The Tribunal decides in substitution that the late veteran’s death was connected to the circumstances of his service.

..........................[Sgd].................................
Senior Member Bernard J McCabe
Dr M Denovan, Member
CATCHWORDS
VETERANS’ AFFAIRS – application for widow’s pension – claim that veteran’s death was war-caused – contention that veteran’s bowel cancer result of exposure to radiation while serving in Japan – exposure of tissue within veteran’s colon to radiation – Tribunal not satisfied beyond reasonable doubt that death was not war-caused – decision under review set aside and substituted – decision that veteran’s death was war-caused.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 9; 13; 120
REASONS FOR DECISION
Senior Member Bernard J McCabe
Dr M Denovan, Member
29 May 2015

The applicant’s late husband, George Mahoney (“the veteran”), rendered operational service in Japan from 5 March 1946 until 23 April 1955 as a member of the

British Commonwealth Occupation Forces (“BCOF”). The veteran died on 7 July 1990.
The applicant says the veteran’s death was war-caused within the meaning of s 9 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) because the cancer that ultimately killed him was the product of radiation exposure he experienced while serving near Hiroshima.
We are satisfied the late veteran’s death was war-caused. We explain our reasons below.
THE LEGISLATION
Section 13 in Part II of the Act states that, where the death of a veteran was war-caused, the Commonwealth is liable to pay pension by way of compensation to the dependants of the veteran: s 13(1)(a) and (c). Section 8 of the Act identifies when a death can be said to be war-caused.
Section 120 of the Act addresses the standard of proof and the process by which the decision-maker must make its assessment. In these proceedings, after satisfying itself as to the kind of death experienced by the veteran, the Tribunal must be satisfied there is material pointing to the hypothesis offered by the applicant. The Tribunal must then identify the relevant statement of principles (“the SoP”) and consider whether the claim is able to fit within the template of the SoP. (We use the ungainly expression “fit within the template” because we are merely asking whether the applicant’s story as it was told is capable of satisfying the requirements in the SoP. We do not evaluate the story or make findings of fact at that stage of the inquiry.) If we are satisfied the claim is capable of satisfying the requirements in the SoP, we then consider what findings of fact should be made.
The kind of death
The death certificate records the causes of death as (a) pneumonia, (b) metastatic bowel cancer (colon) and (c) renal failure. The parties agree that the kind of death for…

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.

Keep reading for free

Create a free CaseChat account to read Jean Mahoney and Repatriation Commission and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] AATA 379
Decision Date: 29 May 2015

CaseChat Overview and Summary

Jean Mahoney sought a widow’s pension from the Repatriation Commission on the basis that her husband, a veteran, died from a malignant neoplasm of the colorectum, which she claimed was caused by his exposure to radiation while serving in Japan. The primary dispute in this case was whether the veteran’s exposure to radiation during his service was sufficient to result in the bowel cancer that ultimately caused his death. The court was tasked with determining whether the veteran's death was war-caused, as required by the relevant Statement of Principles (SoP). This hinged on whether the veteran's exposure to radiation met the criteria outlined in the SoP, specifically concerning a cumulative equivalent dose of at least 0.1 sievert of ionising radiation to the colorectum at least five years before the clinical onset of the malignant neoplasm.

The court examined the evidence presented, noting the expert disagreement on the extent of the veteran’s exposure to radioactive material and whether this exposure would result in the radiation doses referenced in the SoP. The court had to assess if the evidence satisfied the requirements of the SoP, particularly focusing on the veteran's exposure to ionising radiation in the colon. The court concluded that while there was no direct evidence of the veteran's exposure to radiation, the circumstances of his service, including his proximity to Hiroshima and the likelihood of visiting the city, provided a reasonable hypothesis that he could have been exposed. The court was required to determine if the exposure was sufficient to meet the criteria of the SoP, even if the evidence suggested it was unlikely.

In setting aside the previous decision, the court held that the evidence did not exclude the possibility that the veteran was exposed to radiation in the requisite level, even though it was unlikely. The standard of proof required the court to consider whether they could be satisfied beyond reasonable doubt that the veteran’s death was not war-caused. Given the uncertainty, the court found that the veteran’s death was connected to his service circumstances. Consequently, the court ruled that the veteran's death was war-caused and substituted the previous decision accordingly. The court left the question of the date of effect to be resolved by the parties through written submissions.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

We accept there is a dispute between the experts over the extent to which Mr Mahoney would have been exposed to radioactive material, and whether his exposure would have resulted in the sort of radiation doses referred to in the Statement of Principles concerning malignant neoplasm of the colorectum (No 37 of 2013, which is the relevant SoP for our purposes). Does the evidence on its face satisfy the requirements of the Statement of Principles? Clause 6 of the relevant SoP sets out a number of factors which might raise a reasonable hypothesis connecting death from malignant neoplasm of the colorectum with the circumstances of a veteran’s relevant service. Only one of the factors set out in clause 6 of the SoP need apply. In this case, the applicant relies upon factor (i): [H]aving received a cumulative equivalent dose of at least 0.1 sievert of ionising radiation to the colorectum at least five years before the clinical onset of malignant neoplasm of the colorectum[.] Cumulative equivalent dose is defined in clause 9 of the SoP to mean:[T]he total dose of ionising radiation received by the particular organ or tissue. The formula used to calculate the cumulative equivalent dose allows doses from multiple types of ionising radiation to be combined, by accounting for their differing biological effect. The unit of equivalent dose is the sievert. For the purposes of this Statement of Principles, the calculation of cumulative equivalent dose excludes doses received from normal background radiation, but includes therapeutic radiation, diagnostic radiation, cosmic radiation at high altitude, radiation from occupation related sources and radiation from nuclear explosions or accidents[.] The veteran served in the city of Kure, which is located about 20 kilometres to thesouth-east of Hiroshima. Hiroshima was devastated by an atomic bomb dropped on 6 August 1945. Mr Mahoney arrived in Kure in 1946, about seven months after the blast flattened the neighbouring city. There is no direct evidence of how often Mr Mahoney visited Hiroshima. But there is certainly evidence he did visit: the applicant provided photographs she said were taken by the veteran in and around Hiroshima itself. The photographs show the terrible destruction wrought by the bombing. She also provided photographs of Mr Mahoney engaging in sporting activities. He was a keen sportsman, it seems, and was likely to have participated in sporting events staged in Hiroshima. Dr Palazzo, an historian engaged by the applicant, reported that sporting venues in Hiroshima were covered in a brown, talc-like dust. Dr Palazzo added it was likely that veterans like Mr Mahoney would have visited Hiroshima regularly for work and leisure purposes. As he explained at p 14 of his report (exhibit 6):[Mr Mahoney] served for many years in Japan as a part of BCOF in close proximity to the atomic wasteland that was Hiroshima. Like other Australian soldiers it is likely that he visited that ruined city in both an official and a tourist capacity.

Decision

Reasons for decision

The conclusions in the ARPANSA report would have particular force in this case if we accepted exposure to ionising radiation should be averaged across the entire organ (in this case, the colon), rather than making an assessment of the dose to individual cells in close proximity to radioactive material that became lodged within the body. But we have already explained the SoP calls for us to consider the exposure of tissue within the colorectum. If we adopt that approach, it is clear we cannot be satisfied beyond reasonable doubt that tissue in Mr Mahoney’s colorectum was not exposed to radiation in the requisite level from minute particles that were ingested into his system. While we accept the preponderance of the evidence suggests it is unlikely that Mr Mahoney would have been exposed in this way, the standard of proof that we are required to adopt means we cannot reasonably exclude the possibility for which the applicant contends. CONCLUSION The decision under review is set aside. We decide in substitution that the late veteran’s death was connected to the circumstances of his service. We did not receive submissions from either party as to the date of effect. If the date of effect is disputed between the parties, each has leave to file written submissions within 7 days of the date of these reasons so that the question can be resolved.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Division	Veterans' Appeals Division
File Number	2013/2518
Re	Jean Mahoney
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Senior Member Bernard J McCabe Dr M Denovan, Member
Date	29 May 2015
Place	Brisbane