John Hyndes v Military Rehabilitation and Compensation Commission
[2010] AATA 574
•3 August 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 574
ADMINISTRATIVE APPEALS TRIBUNAL
) No 2009/0908
GENERAL ADMINISTRATIVE DIVISION ) Re JOHN HYNDES Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Professor RM Creyke, Senior Member
Dr M Miller AO, MemberDate3 August 2010
PlaceCanberra
Decision The decision under review, to reject liability for the Applicant’s colorectal cancer, is affirmed. .....................[sgd]....................
Professor RM Creyke, Senior Member
CATCHWORDS
COMPENSATION – whether Comcare liable for Applicant’s colorectal cancer – heavy drinking of alcohol during service and to a lesser extent in the Reserves – whether Applicant’s employment contributed in a material degree to condition – risk of contracting colorectal cancer is ‘dose dependent’ – expert evidence that risk more likely in the twenty years prior to diagnosis of cancer, ie from 1980 – insufficient evidence of quantity and link to service of Applicant’s drinking after 1980 – decision under review affirmed.
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 5, 7
Comcarev Canute (2005) 148 FCR 232
Comcare v Sahu-Khan (2007) 156 FCR 536
Re Vo and Comcare [2005] AATA 773
REASONS FOR DECISION
1. Mr John Hyndes began his career with the armed forces with a commission in the Royal Australian Navy. On 20 October 1961 he switched to the Royal Australian Air Force (RAAF) as a permanent flying officer. By 1 January 1978 Mr Hyndes was a Wing Commander.
2. On 21 October 1980 he resigned and was discharged. However, from 22 October 1980 to 12 September 1988, Mr Hyndes was a member of the RAAF Specialist Reserve.
3. Between 9 January 1964 and January 1966 he was stationed at the RAAF Base, Butterworth, Malaysia. Initially he was posted as an Assistant Barracks Officer and his secondary duties were as Officers' Mess Manager. He remained in that position until the first half of 1965.
4. On 28 March 2007, Mr Hyndes was advised that his pathology results tested positive for blood in his faeces. On 16 April 2007, his treating medical practitioner referred him for a colonoscopy. On 6 June 2007, a large carcinoma was found in Mr Hyndes’s rectum.
5. On 12 March 2008, Mr Hyndes applied for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (Act) for depression and colorectal cancer. Mr Hyndes claimed that the colorectal cancer was due to his excessive consumption of alcohol over a lengthy period, a habit he claims was either developed or aggravated by his service.
6. On 29 July 2008 the Military Rehabilitation and Compensation Commission (Commission) accepted liability for depression but rejected liability for colorectal cancer. On 12 January 2009, the Commission affirmed its primary decision. On 2 March 2009, Mr Hyndes applied to the Administrative Appeals Tribunal (Tribunal) for review.
Legislation
7. The relevant[1] provisions of the Safety, Rehabilitation and Compensation Act 1988 (Cth) are:
[1] Relevant because the Tribunal has decided that Mr Hyndes's condition arose prior to 13 April 2007. Hence the pre-13 April 1997 version of the particular provisions are reproduced.
4 Interpretation
(1) In this Act, unless the contrary intention appears:
aggravation includes acceleration or recurrence.
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Comcare means the body corporate established by section 68.
Commonwealth, in relation to persons employed by a Commonwealth authority, has the additional meaning given in subsection 5(7).
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth or a licensed corporation.
employee has the meaning given in section 5, and also applies to persons 65 years of age or older.
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment …
5 Employees
(1) In this Act, unless the contrary intention appears:
employee means:
(a) a person who is employed by the Commonwealth or by a Commonwealth authority, whether the person is so employed under a law of the Commonwealth or of a Territory or under a contract of service or apprenticeship…
7 Provisions relating to diseases
…
(4) For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
Issues
8. The following are the issues:
·Is Mr Hyndes's colorectal cancer a 'disease' and therefore an 'injury' for the purposes of the Act?
·If so, what is the date of the injury?
·Did Mr Hyndes's service contribute to the injury either 'to a material degree', if the date of injury was on or before 12 April 2007, or to a 'significant degree' if the date of injury was on or after 13 April 2007.
·Is the Commission liable to compensate Mr Hyndes under s 14 of the Act?
Background
9. Mr Hyndes joined the Royal Australian Air Force (RAAF) as a flying officer on 20 October 1961. He was posted to Butterworth, Malaysia on 9 January 1964 where he remained until his next posting to Laverton, Victoria on 12 January 1966. From 1 February 1966 he was at Headquarters Support Command, Melbourne, before being posted on 2 September 1967 to Paris, France. He returned to Headquarters Support Command, Melbourne on 30 June 1969. He remained in this position until late 1975 or early 1976, when he was posted to the Department of Air, Canberra. On 20 October 1980 Mr Hyndes resigned his commission. He then joined the RAAF Specialist Reserve.
10. Initially at Butterworth, Mr Hyndes was appointed primarily as Assistant Barracks Officer, with a secondary appointment of Officers’ Mess Manager. Some time during the first half of 1965, Mr Hyndes was promoted to Warehousing Officer and Base Fuel/Explosives Officer and left his position as Officers’ Mess Manager.
Evidence of alcohol consumption
11. In an Alcohol Questionnaire dated 20 December 2007 Mr Hyndes informed the Department of Veterans’ Affairs (the Department) that he began to drink alcohol in 1960 and that he consumed 90-100 drinks per week ‘on average minimum’. He stated:
Alcohol consumed every day. Lunch-time drinking and evening occurred at weekends with mainly evening during week unless some form of RAAF entertainment was undertaken. Binge drinking occurred on occasion at week at weekends [sic] when up to 30 drinks per day would be consumed. This would increase the minimum average.
12. In an affidavit dated 17 March 2005, Mr Hyndes stated:
I would assess the intake [at Butterworth] at around 50 standard drinks per week, due, in part to the requirement to be constantly supervising bar activities as a main element of my duties. During the period of ‘Confrontation’ with Indonesia commencing in August 1964, I was expected to meet all additional aircrew and other Officers who were attached into the area as part of the force build-up and extension of hospitality on behalf of the Base Commanders formed part of the duties. It was expected of me that I would attend and I was also expected to extend bar hours to accommodate late arrivals on attachment. This created a situation where I would assess my intake of alcohol would have extended to 90 standard drinks per week …
The early days of ‘Confrontation’ were extremely stressful and part of my alcohol intake was to relieve stress …
[Service post-Butterworth, including a period in Paris in the late 1960s.]
On reflection the period of the great strike of 1968 which crippled French industry would have seen my intake increase to around 85 per week for 12 weeks due to the requirement to socialise with the striking French workers to ensure continued supply of equipment required for RAAF operations.
For the remainder of my service I consider that 60 standard drinks per week while at Headquarters Support Command between 1969 and 1975 and 55 standard drinks while at Department of Air Canberra between 1976 and 1980. … There was a relatively heavy social commitment from a work perspective and I seemed to have more than my share of stressful tasks which contributed to my relatively high alcohol intake. …
To sum up, I believe during ‘Confrontation’ a pattern of consuming alcohol particularly in stressful work-related situations developed and created a situation from which I only ever partly recovered.
13. At the hearing, Mr Hyndes confirmed the statements in his questionnaire and affidavit and noted that while at Butterworth he was faced, from time to time, with entertaining groups of between thirty to fifty visitors. His immediate supervisor and President of the Mess Committee was a Group Captain who was single and living in barracks. So while other officers left at stand down (4.15pm), the Group Captain did not. He was there all the time and expected Mr Hyndes to be on call. Mr Hyndes’s quarters were only 50 metres away from the Bar. Mr Hyndes said he drank alcohol before he joined the RAAF.
14. Mr Hyndes said the evening meal at the Mess was from 7.00pm to 8.30pm. He said he would drink a minimum of ten beers at dinner. That was not uncommon. The bar was then open until 11.00pm and he was expected to be on call to extend the bar hours if, for example, servicemen on night flying duties arrived later in the evening. However, if the President of the Mess Committee was present, there was no need for him to make the decision about extended bar hours.
15. While in France as a liaison officer with the Dassault aircraft factory, Mr Hyndes said he was accompanied every day by a French officer whom he was expected to entertain. During the industrial strike in France in 1968 he also had to foster good relations with his French contacts in order to ensure that production of aircraft by the factory for the RAAF was not delayed. This involved lunches and invitations to the RAAF Base Bar for executives from the French aviation industry, often in groups of 7 to 8 people at a time, where alcohol was consumed.
16. In cross-examination, Mr Hyndes agreed that despite the notion of obedience to orders by superiors, he was never ordered to drink alcohol directly, but rather was expected. As he agreed, the culture was one of obedience, not necessarily of drinking. He acknowledged that in general it was unacceptable to be visibly drunk while on duty, although he said ‘I could drink without appearing drunk.’ He was aware of the Defence Instructions dealing with use and abuse of alcohol.[2] A version of the Defence Instruction (Air) Personnel (DI(AF) PERS), dated 10 February 1976, dealing with alcohol stated:
The broad policy of the Air Board regarding the use and abuse of alcohol in the RAAF is as set out hereunder:
The consumption of alcohol by its members is not an essential feature of social practice in the RAAF; nor is that attitude to be encouraged or promoted in any way.
The Air Board recognizes each member’s right and responsibility to exercise private judgement regarding the consumption of alcohol, when this is not otherwise restricted by public law or other Air Force orders. However, RAAF personnel consuming alcohol are to maintain required and normal standards of behaviour, performance, and discipline, and the effects of alcohol will not be accepted as grounds for the tolerating of unacceptable performance, behaviour or discipline.
[2] DI (AF) PERS, 10 February 1976, which included in Part 4, the RAAF policy on use of alcohol in the RAAF.
17. However, he said that since he was on duty 24 hours a day at Butterworth, and part of his job involved playing host to visitors, drinking while ‘on duty’ was both permitted and expected. As he said, if someone said ‘join me for a beer’ you were expected to have a beer, rather than soft drink or water, and if he was with a group and it was his ‘shout’, he would not abstain but was expected to drink alcohol too. He said he knew of teetotallers in the RAAF but they were in the minority. He said that the ‘meet and greet’ function was not official, but expected. He said there was no formal duty statement for his position while he was at Butterworth, but agreed that if there had been such a statement it would probably not have formally required him to drink alcohol.
18. He also agreed that he was, on occasions, affected by alcohol while on duty, but said others would not have noticed. He said at that time he knew his drinking was ‘heavy’; today he would classify it as ‘excessive’. He was unaware that his officer evaluation form included ‘temperance’ as one of the criteria since he did not see the form and was not advised of the inclusion of this indicator. He also noted that because he was often senior to those in the Bar, and he believed his presence could inhibit the enjoyment of other, more junior RAAF personnel, he would leave the Bar and spend time in an adjacent room where he was not expected to drink.
19. Mr Hyndes said that he married in December 1964 and was no longer Mess Manager from that time. After his marriage he went home after ‘stand down’ when he would drink stout and wine at home with his wife and might socialise on weekends. At that point he might have had four to five standard drinks at lunchtimes and the same amount in the evening.
20. After leaving Butterworth in early 1966 he was posted to Base Squadron, Victoria where he was under the command of an unpopular ‘workaholic’. Mr Hyndes tried to maintain rapport with junior staff by attending the mess and drinking with them as often as possible. He also used alcohol at this time to help reduce his own stress levels.
21. In September 1967 Mr Hyndes was posted to Paris to work on the Mirage project, which involved extensive representational and social entertaining duties with both the staff at the Dassault site and with visiting Australian members of the forces involved in the project. On return to Melbourne in June 1969 after his stint in Paris, his consumption continued at a high level because of the range of high pressure positions in which he was involved.
22. In late 1975 he was posted to Canberra and was placed in charge of the Legal Reserve which again involved a considerable amount of entertainment of the lawyers. He also said as a member of the RAAF Specialist Reserve from 1980 he was legal adviser to the VIP Squadron and would drink on a regular basis with senior officers either in the Officers’ Mess, at the RSL Club, or the Commonwealth Club. He said his drinking was partly to alleviate stress due to the demands on him for several years of organising biennial conferences and State Panel Seminars.
23. Mr Hyndes pointed out too that in the 1970s and the early 1980s he used stout, beer, wine and spirits for pain relief from what he described as ‘quite severe pain in my left upper leg and hip.’
Diet
24. Mr Hyndes said that while at Butterworth, he would eat bar snacks of processed meat and if he was forced to miss meals, the catering staff made special meat platters for him. There was a shortage of red meat on the base, although the main meal did usually comprise some meat. He also ate processed meat in France. After this he had a considerable taste for and enjoyed salami and other processed meats which he continued to consume until the late 1990s. Today he says he rarely eats red meat. He stopped his earlier high level consumption in 2007. He rarely ate sausages except at boarding school. His usual diet today is fish or pasta or rice, with red meat on occasions.
Medical evidence
25. Mr Hyndes said he had experienced blood in his faeces for many years but put it down to constipation as a result of taking medication. He also said there was also a culture in the RAAF of not going to doctors, so he did not seek medical attention for the condition. However, in early 2007, his wife received a pack containing a test for bowel cancer which he read. He said this made him become aware of the symptoms of bowel cancer. As a consequence, he reported this symptom to his general practitioner and on 28 March 2007 he received the results of a pathology test ordered by his doctor that showed blood in his faeces. His doctor’s notes on that date were ‘+ve see me’. On 16 April 2007, Mr Hyndes was referred for a colonoscopy and cancer of the bowel was diagnosed on 6 June 2007. Mr Hyndes underwent an operation at the end of September 2007 and then had radiotherapy treatment and chemotherapy. Further operations were performed in December 2007 and April 2008.
26. Professor Richard Fox, Honorary Consultant, Department of Clinical Haematology and Medical Oncology at The Royal Melbourne Hospital, provided two reports and gave oral evidence. The first report was dated 15 September 2009; the second, 4 November 2009.
27. In his first report, Professor Fox pointed out that for the majority of individuals with colorectal cancer ‘no specific cause is recognised’, since it involves ‘an interplay of environmental and genetic factors’. He noted an ‘increased risk with the ingestion of red meat, processed meat and low fibre’.
28. In relation to the link between alcohol and bowel cancer, Professor Fox referred to studies that had shown a range of risk from none to modest but only with the ‘highest levels of alcohol intake’. In Mr Hyndes’s case, based on his having colorectal cancer and his alcohol consumption of a ‘minimum of 90-100 drinks per week’, or 14 a day in the 1960s, each drink containing approximately 15g of alcohol, Professor Fox indicated Mr Hyndes would have ‘put his risk of the development of colorectal cancer up by a factor of 50% of more’. At the same time, in response to whether this pattern of consumption made it probable, Professor Fox stated that Mr Hyndes’s alcohol consumption during the period 1961 to 1980 ‘significantly contributed’ to his cancer:
There is not good evidence of latency and effects of ceasing alcohol consumption due to relatively small effects of alcohol consumption. Therefore, I cannot be confident in answering this question.
29. His report continued:
… it is believed that colorectal [cancer] proceeds from the development of a benign adenoma which later transforms to a malignant cancer in the last one or two decades of the development of the cancer. On this basis, it would be the latter period of drinking, ie post 1980, that could be conceptualised as more significant in the development of [Mr Hyndes’s] colorectal cancer.
30. In his second report, Professor Fox said the data he referred to in his report came from several well-known epidemiological studies about the statistical probability of high alcohol intake leading to colorectal cancer but that these reports did not alter his previous opinion. Of significance, given the evidence, was a study carried out by the Cancer Council Victoria which showed that the ‘group with the highest quantile intake of red meat and processed meat (eg sausage, etc) had a relative risk of 2.3 for rectal cancer’. In Professor Fox’s view, this data concerning a combination of high alcohol and red meat consumption ‘explains why 1 in 20 Australians develops this disease’.
31. Dr Nicole Gorddard, medical oncologist at The Canberra Hospital, Mr Hyndes’s treating oncologist, said in her report of 21 July 2009, that in the light of studies which have shown an increased risk of colon cancer in individuals with alcohol intake that ‘Mr Hyndes’s previous history of heavy alcohol use has contributed to his subsequent development of rectal cancer’. Dr Gorddard did not specify what amounted to ‘heavy alcohol use’, nor the relevant period of Mr Hyndes’s heavy consumption.
32. In her subsequent report of 16 November 2009, having read Professor Fox's reports, Dr Gorddard expressed her conclusions with less certainty, simply noting that ‘it is certainly possible that Mr … Hyndes history of heavy alcohol use has contributed to his subsequent development of rectal cancer’. However, she goes on:
I cannot possibly say with certainty that [Mr Hyndes’s alcohol consumption] was the main cause, neither can I state with any certainty which period of drinking has contributed most to this. As Professor Fox has outlined, there are many complex factors which contribute to a person developing carcinoma and in an individual patient it is often very difficult to ascertain which are the most important contributing factors. Also I do not believe that we have enough information to allow us to ascertain the timing of alcohol intake contributing to development of colorectal carcinoma.
Other evidence
33. The Tribunal notes that of the people who provided statements for the purposes of the hearing, only Mr Noonan and Mr Tsicalas appeared at the hearing. Accordingly, the Tribunal has given less weight to the evidence of the remaining witnesses.
34. Mr Barry Noonan, formerly Air Commodore, now retired, gave evidence of the functions of the Mess Manager. He had served at Butterworth, but not while Mr Hyndes was posted there. He was not personally greeted by the Mess Manager when he arrived at Butterworth because he said he was with his family, but he said the Mess Manager was expected to look after guests until the Mess President took charge. He said that there was no expectation that the Mess Manager would drink excessively when performing the ‘meet and greet’ function, nor necessarily that the person would drink at all. He also said that alcohol was provided to visitors when they arrived, depending on the time of the day.
35. Mr Noonan confirmed that the Commander at Butterworth implemented the ‘Commander’s Call’, often on a weekly basis. Instituted as a socialisation mechanism and for senior officers to ‘get to know the junior officers’, it required senior and junior officers to meet socially with the Commander. The Commanding Officer often bought the first and second round and a ‘kitty’ was established to pay for further rounds. He said that drinking alcohol was not compulsory, although he noted ‘there were not many non-drinkers I knew of in my 27 years in the RAAF.’ He said it was recognised that flying under the influence was an offence. He also said that, although attendance at the ‘Commander’s Call’ was not compulsory, it was virtually obligatory and absences were noticed.
36. He agreed that from 1965 the Officer Evaluation Report contained a question about ‘temperance’. He was also aware from about 1983 that the RAAF had a policy on alcohol consumption, along the lines of the DI(AF) PERS of 1976. He said he had not seen the defence instruction in the 1960s since this was something which was the responsibility of commanding officers. He said drinking was an ‘integral’ part of the RAAF culture of the time.
37. Mr Spiro Tsicalas, former Wing Commander, also gave evidence. He had been the Senior Equipment Officer at Butterworth between 1966 and 1969. Again his posting did not overlap with Mr Hyndes’s. However, he said his general understanding of the duties of Mess Manager was as described by Mr Hyndes and he had accepted Mr Hyndes’s view of the build up of defence personnel at Butterworth in the latter part of 1964. He also confirmed there was an expectation to join a senior officer when invited for a drink and that ‘there was an obligation to do so and it was assumed that the drink would be alcoholic’. He also said that the quantity of alcohol consumed by defence personnel in the 1960s and 1970s was excessive by today’s standards.
38. He acknowledged that he would not have ordered the Mess Manager to drink with guests. As he said, at that time there was no need for such orders since drinking was regarded as acceptable as social behaviour. He accepted that what a person drank was at their discretion, but said that beer was the drink of choice and drinking alcohol was the norm. However, he agreed with the statement that although there was no compulsion to drink it was almost an obligatory element of service.
39. His evidence was supported by a statement by Mr James Dunne, a former RAAF officer and pilot. Mr Dunne did not provide oral evidence at the hearing, however in his written statement he confirmed that there would have been an expectation of daily alcohol consumption while Mr Hyndes was in Paris. In his view, ‘consumption of … 10 standard drinks per day on average would not have been seen as excessive’.
40. Similarly, Ms Elizabeth Dainer, who provided written evidence in support of Mr Hyndes’s claim, affirmed that ‘consumption of alcohol was not always optional and was at times insisted on’. Mr Colin Ely, former Group Captain, now retired, also affirmed that ‘alcohol consumption was part of the culture and was expected of officers’ in the roles Mr Hyndes’s performed.
Consideration
What is the date of the injury?
41. The logical starting point is to decide the date of the injury, since that date will determine which version of the Act is to be applied. The reason the date is important is that the definition of ‘disease’ was changed following the amendments to the Act which commenced on 13 April 2007 and that definition is relevant in this matter.
42. An Initial Liability Report prepared by the Commission for the purposes of Mr Hyndes’s application for a disability pension stated that the date of injury was ‘Tuesday, 22 May 2007’. The primary determination dated 29 July 2008 did not nominate a date of injury, but apparently assumed it was under the pre-13 April 2007 legislation. The reviewable decision, dated 12 January 2009, also did not specify a date.
43. The date from which an injury is said to occur is addressed in section 7(4) of the Act. This provision was not affected by the relevant amendments to the Act in 2007. Section 7(4) of the Act states that ‘an employee shall be taken to have sustained an injury, being a disease …. on the day when the employee first sought medical treatment for the disease … or the disease … first resulted in the incapacity for work, or impairment of the employee, whichever happens first’.
44. In evidence at the hearing Mr Hyndes said he consulted his doctor ‘a few months before May 2007’. This visit followed his wife’s receipt of the treatment pack to test for bowel cancer when he learned that traces of blood in faeces are a possible indicator of the condition. The medical records of Mr Hyndes’s treating medical practitioner noted on 28 March 2007 that Mr Hyndes’s pathology results showed ‘Faeces Occult Blood 1 – +ve see me’. In other words, Mr Hyndes ‘first sought medical treatment’ before 28 March 2007, evidenced by the fact that he saw his doctor because he was concerned about bowel cancer, and the pathology results subsequently, received on 28 March 2007, showed blood in his faeces. That consultation resulted in the referral for a colonoscopy on the 16 April 2007 and bowel cancer was subsequently diagnosed on 6 June 2007.
45. Comcare has submitted that the better view is that the applicant did not first seek medical treatment until either 16 April 2007 or 6 June 2007 since there is no indication that the positive testing for blood in the faeces was related to the bowel cancer. The Tribunal disagrees. The words ‘first sought medical treatment’ in their ordinary meaning are capable of referring to when the patient first brought to the attention of their treating medical practitioner a concern about their health which was later vindicated following medical examination or testing. The word ‘treatment’ which is defined as relevant in the Macquarie Dictionary as: ‘3. management in the application of medicines, surgery, etc’[3] is apt to include seeking advice from a medical practitioner, the results of which leads to a diagnosis. It is also notable that the person who is the focus in the expression ‘first sought medical treatment’ is the patient. The actions on 16 April 2007 and 6 June 2007, namely the referral for a colonoscopy and the diagnosis of a tumour, were actions of a medical practitioner.
[3] The Macquarie Dictionary (2nd edn, 1991) 1861.
46. The Tribunal also disagrees with an argument based on the fact that ‘the note of 28 March 2007 does not give an indication of the cause of blood in the faeces’. The subsequent letter of referral on 16 April 2007 requested a colonoscopy ‘in view of a +ve FOB on screening test’. The terms of the referral do link the pathology findings on 28 March 2007 with the 16 April 2007 referral. In addition, it was the information sent to his wife about blood in the faeces being an indicator for bowel cancer that led to Mr Hyndes first raising the matter with his medical practitioner and that clearly occurred earlier than 28 March 2007. On that basis, the Tribunal is satisfied that Mr Hyndes’s date of injury was 28 March 2007. That means that the pre-13 April 2007 definition of ‘disease’ applies.
Is Mr Hyndes's colorectal cancer a 'disease' and therefore an 'injury' for the purposes of the Act?
47. The definition of ‘disease’ as relevant is ‘any ailment suffered by an employee’[4] and an ‘ailment’ means ‘any physical …ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).’[5] In the absence of any statutory definition of these terms, the ordinary meanings of ‘ailment’, ‘disorder’, ‘defect’ and ‘morbid condition’ can be adopted.[6]
[4] Safety, Rehabilitation and Compensation Act 1988 (Cth) s 4 ‘disease’.
[5] Ibid ‘ailment’.
[6] Re Vo and Comcare [2005] AATA 773.
48. The Macquarie Dictionary, as relevant, says of ‘ailment’ that it is ‘a morbid affection of the body or mind; indisposition’.[7] A ‘disorder’ is ‘4. a derangement of physical …. health or functions[8]’; and ‘defect’ is ‘1. …a fault or imperfection’.[9] ‘Morbid’ means ‘2. affected by, proceeding from or characteristic of disease. 3. pertaining to diseased parts: morbid anatomy’.[10]
[7] The Macquarie Dictionary (2nd ed., 1991) 34.
[8] Id at 507
[9] Id at 465.
[10] Id at 1155.
49. Since a ‘cancer’ is ‘an abnormal growth’,[11] it is a morbid condition which falls within the defined elements of an ailment, a disorder or a defect and therefore meets the first element of ‘disease’ in section 4 of the Act. Mr Hyndes has accordingly suffered an ‘injury’ for the purposes of section 4 of the Act.
Did Mr Hyndes's service contribute to the ‘injury’ 'to a material degree'?
[11] Id at 263.
50. The second element of ‘disease’ in section 4 is that the disease ‘was contributed to in a material degree by the employee’s employment. What amounts to a ‘material contribution’ was considered in Comcare v Sahu-Khan[12] where Finn J endorsed the decision of the Full Federal Court in Comcarev Canute[13] that this expression was ‘intended to require that the contribution be “more than a mere contributing factor”’.[14] As His Honour put it, the inclusion of the term ‘material’ imposed an ‘”evaluative threshold” below which a causal connection may be disregarded’.[15] Finn J concluded that the correct test for ‘in a material degree’ was probably best captured by the meaning in the Shorter Oxford English Dictionary as ‘4. In a material degree; substantially, considerably’[16] and that ‘in a material degree’ required an evaluation of all relevant factors.[17]
[12] Comcare v Sahu-Khan (2007) 156 FCR 536.
[13] Comcarev Canute (2005) 148 FCR 232 at [12].
[14] Comcare v Sahu-Khan (2007) 156 FCR 536 at 542.
[15] Comcare v Sahu-Khan (2007) 156 FCR 536 at 542.
[16] Id at [15].
[17] Id at [16].
51. This raises three key issues. First, is drinking to an excessive level, whether in conjunction with eating red or processed meat, or on its own, causative of colorectal cancer? Second, did Mr Hyndes’s employment contribute to the drinking of alcohol to the extent he claimed, with or without the eating of red or processed meats? Third, did that causative factor meet the ‘in a material degree’ standard?
52. The epidemiological evidence from the 27 studies on the connection between consumption of alcohol and carcinoma referred to by Professor Fox indicated that the risk of developing colorectal cancer can range from nil to a ‘very moderate’ (described by Professor Fox as ‘modest’) risk for the highest level of alcohol intake. That means there is a possible causative link between drinking alcohol and colorectal cancer, at least in the case of someone with the level of alcohol consumption in the order of up to 100 standard glasses of alcohol a week. Mr Hyndes’s evidence was that this was his level of consumption in the early 1960s while he was at Butterworth. The Tribunal accepts that Professor Fox is an acknowledged expert in this area and has given appropriate weight to his evidence.
53. The second issue is whether Mr Hyndes’s employment contributed to the drinking of alcohol to the extent he claimed, with or without the eating of red or processed meats. In 1980, Mr Hyndes resigned his commission and joined the RAAF Specialist Reserve. That meant his RAAF commitment was limited in duration and was not full-time. Mr Hyndes’s evidence was that in the period 1980 to 2007 he had liaison, including entertainment, responsibilities, there was pressure on him from his duties in relation to conferences and seminars, and he was using alcohol as one means of alleviating pain from his hip and upper leg. In other words, his alcohol consumption continued.
54. What has not been established is Mr Hyndes’s level of consumption of alcohol after 1980. That evidentiary deficit is critical because Professor Fox’s evidence was that it was Mr Hyndes’s ‘latter period of drinking, ie post 1980’ which was most likely to be significant for the development of his condition. There is considerable evidence of Mr Hyndes’s consumption while at Butterworth and indeed in the periods up to, but not, beyond 1980.
55. Given that there is unanimity amongst the experts that ‘The effect of alcohol on cancer risk is dose dependent’,[18] this absence of information about levels of consumption in the period after the 1980s means the Tribunal is left with an evidentiary vacuum. The Tribunal notes too that post-1964 at Butterworth when Mr Hyndes was married, in Paris, and later in Australia, particularly after 1980, not only was the volume of his alcohol consumption unclear but much of his consumption was in the private sphere, that is, at home. This domestic drinking had no causal connection with service. Nor has any attempt been made to provide differential quantitative information on the respective amounts of alcohol consumption which were service-related as compared to domestic at relevant stages of Mr Hyndes’s history, particularly post-1980 when Mr Hyndes was no longer a full-time permanent officer.
[18] Cancer Institute of NSW, Alcohol Consumption and Cancer Risk, (2008) 4.
56. In this context it is significant that in her report of 16 November 2009, Dr Gorddard expressed reservations about the cause of Mr Hyndes’s colorectal cancer. She did so in the light of the paucity of evidence of the volume and timing of Mr Hyndes’s alcohol intake in the period when his consumption pattern may have contributed to his carcinoma. Her evidence apparently accepted Professor Fox’s finding, as too does the Tribunal, that it was the period of drinking post-1980 which was of the most relevance for his claim.
57. A second argument was that the risk of development of colorectal cancer may have been enhanced because of Mr Hyndes’s diet of eating red or processed meats until at least 2007. However, there was no evidence of the level of his consumption of such meats in the relevant period, particularly while in the Specialist Reserve. Nor were studies provided indicating the level of increased risk from eating red or processes meat in conjunction with particular levels of alcohol consumption. For that reason, the Tribunal has also not been able to make findings on whether there was an increased level of risk of contracting colorectal cancer from Mr Hyndes’s diet of a combination of eating red or processed meats and his consumption of alcohol.
58. For these reasons, there is insufficient evidence to enable the Tribunal to be satisfied of the requisite connection between levels of alcohol consumption, with or without the consumption of red and processed meats ‘in a material degree’ post-1980.
59. As a consequence, the Tribunal does not need to consider the issue of whether drinking alcohol was expected of Defence Force members so that the practice of drinking excessively could be said to ‘arise out of, or in the course of’ Mr Hyndes’s employment.[19] Nor is it necessary to make findings on the relevance of the 1976 Defence Instruction,[20] or the Officer Evaluation Reports on temperance.
[19] Roncevich v Repatriation Commission (2005) 222 CLR 115; Re Roncevich and Repatriation Commission (2006) 91 ALD 662.
[20] DI(AF) PERS The use of Alcohol in the RAAF Part 4, 14.
60. The Tribunal, while acknowledging the efforts of counsel for Mr Hyndes to assist the Tribunal with sufficient evidence, is not able to be satisfied that there was a connection to the requisite degree between Mr Hyndes’s service and his cancer. The Tribunal accordingly affirms the decision under review. That means the application has been unsuccessful.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member and Dr M Miller AO, Member.
Signed: .............................[sgd].......................................
AssociateDate/s of Hearing 16 – 17 June 2010
Date of Decision 3 August 2010
Counsel for the Applicant Fergus Thomson
Counsel for the Respondent Lorraine Walker
Solicitor for the Respondent Australian Government Solicitor
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