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.  

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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

1. 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.

2. We are satisfied the late veteran’s death was war-caused. We explain our reasons below.

   THE LEGISLATION

3. 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.

4. 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

5. 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 present purposes was metastatic bowel cancer, or malignant neoplasm of the colorectum. We are satisfied that is an appropriate finding in light of the uncontradicted medical evidence.

   The hypothesis

6. The applicant says Mr Mahoney’s cancer was attributable to radiation exposure that occurred while he served in Japan as part of the BCOF. The applicant points to material (summarised in the expert report of Dr Douglas, an occupational physician) suggesting Mr Mahoney would have ingested radioactive dust that resulted in levels of internal radiation doses high enough to trigger the development of metastatic bowel cancer.

7. 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?

8. 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[.]

9. 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[.]

10. The veteran served in the city of Kure, which is located about 20 kilometres to the
    south-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.

11. 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.

12. Dr Busby, who holds a doctorate in chemical physics, claimed live uranium oxide nanoparticles, together with fission products, would have contaminated the ground, air, water supplies and edible produce in Hiroshima and surrounding areas up to
    20 kilometres away (exhibit 3 at p 4). In his evidence at the hearing, he said it was “inconceivable” that the veteran would not have inhaled uranium particles in the dust he would have encountered in Hiroshima. According to Dr Busby, those particles would have lodged in the colonic epithelium where high doses of radiation could be delivered to local tissue.

13. The applicant also relied on the evidence of Dr Douglas, an occupational physician with expertise in occupational and environmental toxicology, risk assessment and related research. Dr Douglas agreed with Dr Busby that Mr Mahoney would have ingested dust containing radioactive particles. He said the alpha particles, which were large and especially dangerous, would have continued to emit radiation within the colon for many years. He said the particles would deliver especially high doses to the surrounding tissue. He agreed with Dr Busby’s estimate of the amount of exposure Mr Mahoney would have received in those circumstances. Importantly, he concluded in his report (exhibit 2
    at p 9):

    Clearly inhalation of radioactive particles of uranium and/or plutonium will result in very high local doses of radiation received by particular cells. Such doses are well in excess of the 0.1Sv required to be a causative factor in the development of cancer of the colorectum as set out in the Statement of Principles.

14. The respondent’s expert, Dr O’Brien, works for the Australian Radiation Protection and Nuclear Safety Agency (ARPANSA). Dr O’Brien disputes the applicant’s case in two respects in particular. He:

    ·Says there was not as much radioactive material in the environment as the applicant contends. Dr O’Brien says typhoons recorded after the blast would have washed away a lot of the material (see exhibit 4 at p 7). He also pointed to studies showing the limited area in which fallout occurred. In his oral evidence, he referred to an ARPANSA study in 2002 which suggested only workers engaged in rubble clearance within a comparatively small zone were at risk of significant doses of radiation (exhibit 5).

    ·Disagreed with the methodology used by Dr Busby to measure the cumulative equivalent dose of ionising radiation. Dr O’Brien relied on models developed by ARPANSA to measure dose; Dr Busby said those models were not appropriate in cases of internal rather than external exposure. Dr Busby pointed out the important issue was the exposure of tissue. Dr O’Brien disagreed and explained in his oral evidence that Mr Mahoney would have suffered significant and presumably noticeable harm within a matter of days or weeks if he had received the dosage to the colon contended for by Dr Busby.

15. The argument about the methodology is an important one. Mr Harding, who appeared for the applicant, argued in his submissions that the ARPANSA methodology averaged the exposure 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. Mr Harding said the SoP does not require that the whole organ be exposed to the specified amount of radiation:  it would be enough if tissue within the colon were exposed to a cumulative equivalent dose of at least 0.1 sievert.
    In making that argument, Mr Harding relied on the oral evidence of Dr Busby, who pointed out it was the exposure of individual cells to radiation that was important because the whole organ did not develop cancer. Dr Busby explained (transcript at p 70):

    [I]t’s the dose to the single cell where the tumour develops that’s important.
    …So we’re talking about a tissue, we’re not talking about the whole organ.... [I]t’s the dose to the tissue, specific area of the colon, which is important. And of course the dose to that from a uranium particle that’s been trapped in the colonic epithelium, because it’s only the epithelium that we should be concerned about, this is the surface of the inside of the colon, those are the cells that replicate and those are the ones that develop cancer. The cancer never develops on other parts of the colon, from the muscular part of the colon or from the outer part of the colon. You very rarely get cancers there, almost never. It’s always from the epithelium.

16. Dr Busby subsequently pointed out in cross-examination (transcript at p 71) that the ARPANSA methodology adopted the definition of “dose to the organ”, whereas

    
    

    Dr Busby said “the Australian legislation” (by which he presumably meant the SoP) refers to “‘dose to organ’ or ‘dose to tissue’” – and it is dose to the tissue that matters (transcript at p 74).

17. Dr O’Brien said in cross-examination there are difficulties associated with trying to assess the exposure of individual cells, but he added there were adjustments made in the averaging process he undertook that took into account the epidemiological data (transcript at p 66).

18. The words of the SoP are crucial. We have already quoted the text of factor 6(i), which refers to receiving “a cumulative equivalent dose…to the colorectum”. On its face,

    
    

    factor 6(i) is referring to the organ as a whole, rather than colorectum tissue or even the epithelium. But Mr Harding points out the definition of “cumulative equivalent dose” in clause 9 is taken to mean “the total dose of ionising radiation received by the particular organ or tissue.” (Emphasis added.)

19. The applicant is right. The wording of factor 6(i) does not require that the whole of the colorectum be exposed to the requisite level of radiation. Nor does it suggest on its face that exposure of parts of the organ – especially those parts of the organ that are vulnerable to ionising radiation – is only problematic if the exposure is averaged across the whole organ (including parts that were not exposed, and which might not be vulnerable to the effects of ionising radiation) and the average figure exceeds the requisite level. The applicant’s interpretation of the words in factor 6(i) makes sense when one has regard to the reference in clause 9 to “the particular organ or tissue”. It also makes sense having regard to the purpose of the SoP, which is to provide an authoritative guide as to when a condition (in this case, a particular form of cancer) is related to the circumstances of the person’s service. As Dr Busby pointed out in his evidence, the risk of cancer only arises when certain cells within the colorectum are exposed to ionising radiation. It would be odd if the Repatriation Medical Authority intended that radiation be assessed across the whole organ (including parts of the organ that were known not to be vulnerable to the development of cancer as a consequence of radiation exposure) when vulnerable but localised areas of tissue might have been exposed to an excessive dose.

20. At this stage of the analysis, we do not need to resolve the factual dispute between the parties as to the amount of radiation present in the environment, or the likelihood of

    
    

    Mr Mahoney ingesting radioactive particles which then lodged in his gut.

    
    

    While acknowledging there is disagreement, we accept there is evidence suggesting

    
    

    Mr Mahoney would have ingested dust containing radioactive material, and that the material would have lodged in his colon and delivered doses of radiation, in at least the amount referred to in the SoP, to the tissues that subsequently became cancerous.

    
    

    It follows we accept the applicant’s case fits the template provided by the SoP.

    Findings of fact

21. Having satisfied ourselves that the applicant’s case fits the SoP, we must now make findings of fact. Most of the facts are not in dispute: the two questions that remain unresolved have been identified above. We will deal with each in turn before considering whether we are satisfied beyond reasonable doubt that the veteran’s death was not
    war-caused.

    What was the extent of the radiation in the environment in and around Kure during the veteran’s service?

22. Dr Busby produced a 1983 study which showed areas to the north-west of the hypocentre of the blast experienced “black rain” shortly after the bomb was detonated.[1] “Black rain” is a phenomenon that occurs following an atomic blast when large amounts of material are taken up into the atmosphere. That material falls to earth in the course of a downpour which inevitably follows the blast. Dr Busby said the black rain contained radioactive material, including nanoparticles of enriched uranium. (The Hiroshima bomb used uranium-235. Crudely speaking, the bomb worked by firing one mass of uranium-235 into another mass of the same material, which triggered the chain reaction that generated the blast. But only a small proportion of the fissionable material was consumed in the chain reaction. Dr Douglas estimated around 63 kilograms of enriched uranium might have remained, albeit that it would have been vaporised into nanoparticles: transcript
    

    [1] Takada, Hoshi, Sawada and Sakanoue, ‘Uranium Isotopes in Hiroshima “Black Rain” soil’ (1983) 24 Journal of Radiation Research 229-236

    at p 16.)

23. Dr O’Brien provided a report dated June 2014 in relation to Mr Mahoney that drew on a report prepared by ARPANSA for the Department of Veterans’ Affairs in July 2002.
    The 2002 report, titled “Estimations of Atomic Radiation Exposure in Australian Service Personnel in South West Japan 1946-52”, is exhibit five. Dr O’Brien’s report and his oral evidence drew heavily on that report and the studies and evidence it discussed. In his oral evidence, he said comparatively little uranium (the fissionable material within the Hiroshima bomb) would have been deposited on the surface as a consequence of fallout following the blast. While the bomb contained around 60 kilograms of uranium that might not have been consumed in the explosion, only a small portion of it would have returned to earth as fallout in the short term. The rest of it would have remained suspended in the atmosphere or the stratosphere before being slowly and widely dispersed. He referred to records and studies that showed the wind was blowing from the east when the atomic bomb was dropped on Hiroshima – that is, away from Kure, which is located to the south-east of the city, where Mr Mahoney was subsequently based.
    But he also questioned how much evidence there was of uranium contamination throughout the city in any event. He referred in oral evidence to measures taken by Japanese authorities in the days following the attack at a house not far from the hypocentre of the blast, which did not record the presence of enriched uranium: transcript at p 67.

24. Dr O’Brien agreed in cross-examination that fissionable material may have been contained in the black rain but doubted it was especially concentrated. He added that typhoons recorded in August 1945 and March 1946 would have washed away much of the radioactive material in any event. He emphasised radiation assessments conducted by American specialists before the occupation commenced recorded relatively low levels of radiation – low enough for the occupation forces to be satisfied it was safe to enter the affected areas. He added that even if all of the uranium in the bomb fell to earth and made its way into the water supply, his calculations suggested the doses were negligible.

25. Dr O’Brien’s evidence is consistent with most of the available research, much of which is referred to in the ARPANSA report in 2002. We acknowledge Dr O’Brien was not familiar with the 1983 study of the effects of black rain but he said it did not change his central conclusion. While the applicant has certainly raised searching questions over the means by which radioactive material might have been dispersed following the blast, there is limited evidence of the presence of dangerous levels of radioactive material in the environment when Mr Mahoney served in the area.

26. Even so, we cannot be satisfied beyond reasonable doubt that Mr Mahoney would not have been exposed to fissionable material, including enriched uranium, during the course of his service.

    If radioactive material was present in the environment as a consequence of the atomic blast, would Mr Mahoney have been exposed to a cumulative equivalent dose of at least 0.1 sievert of ionising radiation?

27. The applicant relied on the evidence of both Dr Busby and Dr Douglas in relation to this issue. They argued the real problem in this case was internal radiation, not radiation to the body as a whole. Dr Douglas explained the radioactive material could be contained in dust. Mr Mahoney could be expected to have breathed it in, and a quantity of the radioactive material would have lodged in his gut where it could have delivered the required level of radiation dose to the portion of the colon that subsequently became cancerous. Dr Douglas was particularly concerned about the presence of uranium isotopes because uranium emits larger (and therefore more dangerous) alpha particles, whereas some other radioactive material, such as strontium, emits smaller beta particles that may not have delivered as high a dose of radiation, even though strontium decays faster (transcript at p 19). Dr Douglas explained in his oral evidence that even a small amount of enriched uranium could deliver a high, focused and localised dose to a small area of tissue within the larger organ. We note Dr Douglas concluded in his report (exhibit 2 at p 9):

    In my opinion, there is no doubt that George Mahoney would have received internal radiation far in excess of the cumulative equivalent dose of 0.1 Sievert necessary to meet the requirement for causation expressed in the [relevant SoP].

1. That hypothesis becomes harder to sustain if there was little enriched uranium in the environment, as Dr O’Brien’s studies suggest. Dr O’Brien also said that even if there was radioactive material in the dust,

   the re-suspension factor for dust was so low that it was unlikely a person would ingest significant amounts of material. He said the ingestion of very small particles of uranium that were present in the environment would not deliver the sort of dose referred to in the SoP – although we infer that observation was based on the assumption that exposure had to be averaged over the whole of the colorectum.

   
   

   Dr O’Brien pointed out that while uranium isotopes emitted alpha particles, uranium decayed at a much slower rate than other materials, and was therefore considered less radioactive.

2. Dr O’Brien noted the ARPANSA report of July 2002 concluded servicemen like
   Mr Mahoney were unlikely to have been exposed to high doses of radiation in the period in question. That report explored the potential for exposure in a variety of scenarios, including internal exposure. He pointed out in his oral evidence that the 2002 report adopted a methodology for assessing dosage and its effect that was consistent with the recommendations of the International Commission on Radiological Protection, an organisation that reviewed scientific literature on the subject and made recommendations. Dr O’Brien used the methodology and dose estimates in the 2002 report as the starting point in his 2014 report. In the 2014 report, which examined Mr Mahoney’s case in particular,  Dr O’Brien concluded (exhibit 4 at p 9):

   The cumulative committed equivalent dose to the colon was estimated to be considerably less than 100mSv, well below the cumulative equivalent dose to the colon set out in the Statement of Principles for Malignant neoplasm of the Colorectum.

   Therefore it is highly unlikely that exposure to ionizing radiation caused by the atomic bomb dropped on Hiroshima would have caused the cancer that led to
   Mr Mahoney’s death.

3. 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

4. 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.

I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe and Dr M Denovan, Member.

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Associate

Dated 29 May 2015

Date of hearing	3 October 2014
Date final submissions received	30 January 2015
Counsel for the Applicant	Mr A Harding
Solicitors for the Applicant	Terence O'Connor Solicitor
Advocate for the Respondent	Mr B Williams