Kerns and Repatriation Commission (Veterans' entitlements) - [2022] AATA 357

Kerns and Repatriation Commission (Veterans' entitlements) [2022] AATA 357 (2 March 2022)
Division:VETERANS’ APPEALS DIVISION
File Number(s): 2020/8077
Re:Michael Kerns
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Member W Frost
Date:2 March 2022
Place:Canberra

The decision under review is affirmed pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
.....................[sgd].......................................
Member W Frost
Catchwords
VETERANS’ ENTITLEMENTS – whether disease is ‘war caused’ – multiple myeloma – Oberon class submarine – benzene – statement of principles 69 – reasonable hypothesis – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) – ss 37, 43
Military Rehabilitation and Compensation Act 2004 (Cth)
Veterans’ Entitlements Act 1986 (Cth) - ss 5AB, 6DB, 7, 9, 13, 14, 68, 120, 120A, 175, 196B
Cases
Repatriation Commission v Deledio (1998) 83 FCR 82
Beezley v Repatriation Commission (2015) 150 ALD 11
Blain v Repatriation Commission [2017] FCA 114
Repatriation Commission v Hill [2002] FCAFC 192
Ellis v Repatriation Commission [2014] FCA 847
East v Repatriation Commission [1987] FCA 242
Dougherty and Repatriation Commission [2019] AATA 706
Bull v Repatriation Commission [2001] FCA 1832
Budge and Repatriation Commission [2014] AATA 276
Forrester v Repatriation Commission [2013] FCA 898
Repatriation Commission v Bey (1997) 79 FCR 364
Secondary Materials
Statement of Principles No 69 of 2012
Statement of Principles No 70 of 2012
Statement of Principles No 95 of 2021
Statement of Principles Bulletin No 189
REASONS FOR DECISION
Member W Frost
2 March 2022

The Applicant, Mr Michael Kerns, made a claim with the Department of Veterans’ Affairs (DVA) for a Disability Pension on the basis that his diagnosed multiple myeloma resulted from exposure to benzene during his service on Royal Australian Navy (RAN) submarines in the 1980s. A delegate of DVA refused Mr Kerns’ claim because they were not satisfied that his condition was related to his service. The Veterans’ Review Board (VRB) affirmed this decision and Mr Kerns applied to the Administrative Appeals Tribunal (Tribunal) for merits review.
Together with the submissions provided at the hearing, the Tribunal has considered all of the documents filed by the Repatriation Commission in this proceeding pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act)[1], the supporting documents filed in the proceeding by Mr Kerns and taken into evidence by the Tribunal[2] and the parties’ respective written submissions.
[1] Exhibits 1, 2 and 13.
[2] Exhibits 3 to 12.
ISSUE
The issue in this proceeding is whether Mr Kerns’ multiple myeloma was ‘war-caused’ pursuant to the Veterans’ Entitlements Act 1986 (VEA).
BACKGROUND
Mr Kerns is 60 years old.[3]
[3] Exhibit 1, T2, page 10.
On 29 June 1981, Mr Kerns enlisted in the RAN.[4]
[4] Exhibit 1, T4, page 26.
Between June 1981 and January 1982, Mr Kerns undertook general entry and other training and was promoted to the rank of ‘Seaman Underwater Control (Unqualified)’.[5]
[5] Exhibit 1, T5, page 29.
On 15 January 1982, Mr Kerns obtained the rank of ‘Seaman Underwater Control (Qualified)’ and performed Seaman Duties, as follows:[6]
Part of Ship – Employed as a seaman.
Maintenance duties on metal surfaces and fittings. Painting, ropework, boatwork, anchorwork, berthing, rigging, underway replenishment and seamanship evolutions as directed by Part of Ship Petty Officer. Helmsmanship under the Supervision of the Quartermaster.
Bosun’s Mate (Sea) – Assists the Quartermaster running the wheelhouse. Responsible for recording meteorological details in the rough log. Acts as runner for the Officer of the Watch. Bosun’s mate (Harbour) – Assists the Quartermaster running the ship’s daily routine, updates gangway log and incident books, maintains gangway and upperdeck security. Monitors and records meteorological instrument readings.
[6] ibid., pages 29-31.
Between May and December 1982, Mr Kerns undertook further training and on 8 December 1982, was promoted to ‘Able Seaman Underwater Control’.[7]
[7] ibid., page 31.
On 25 January 1983, Mr Kerns was awarded a Submarine Badge.[8]
[8] ibid., page 31.
From 26 January 1983 to 28 August 1983, a total of 30 weeks, Mr Kerns was posted to HMAS Otama, an Oberon Class submarine in the RAN.[9] During this time, Mr Kerns performed the following duties:[10]
Sound Room Watchkeeper – Operation of submarine sonar equipment under the supervision of the Sound Room Petty Officer of the Watch.
[9] ibid., page 34; T7, page 150.
[10] Exhibit 1, T5, page 33.
From 29 August 1983 to 26 October 1986, a total of 165 weeks, Mr Kerns was posted to HMAS Onslow, another Oberon Class submarine.[11] From August 1983, Mr Kerns undertook the following duties as a Seaman:[12]
Refit watchkeeper – Carry out fire watchkeeper duties outside dockyard hours.
Navigator’s Yeoman – Responsible for: recording and acknowledging receipt of charts and publications; recording receipt of all notices to mariners and transferring of such information to relevant record books; maintaining navigational warning message logs in co-operation with the ship’s communications department; ensuring that ship’s outfit of navigational charts, hydrographic publications and plotting material is corrected and maintained; preparing and providing charts, publications and plotting materials as directed by the Navigator and safe custody of permanent loan items and navigational instruments.
[11] ibid., page 34; T7, page 150.
[12] Exhibit 1, T5, page 33.
From February 1985, Mr Kerns performed the following roles:[13]
Sound Room Watchkeeper – Operation of submarine sonar equipment under the supervision of the Sound Room Petty Officer of the Watch.
Casing Party – Line handling and seamanship duties during harbour stations and seamanship evolutions.
[13] ibid., pages 33 and 35.
On 31 August 1985, Mr Kerns was promoted to ‘Leading Seaman Underwater Control Submariner’ and performed the following duties:[14]
ASSISTANT SUPERVISOR.
Navigator’s Yeoman – Responsible for: recording and acknowledging receipt of charts and publications; recording receipt of all notices to mariners and transferring of such information to relevant record books; maintaining navigational warning message logs in co-operation with the ship’s communications department; ensuring that ship’s outfit of navigational charts, hydrographic publications and plotting material is corrected and maintained; preparing and providing charts, publications and plotting materials as directed by the Navigator and safe custody of permanent loan items and navigational instruments.
Sound Room Watchkeeper – Operation of submarine sonar equipment under the supervision of the Sound Room Petty Officer of the Watch.
Second in charge Casing Party – Line handling and seamanship duties during harbour stations and seamanship evolutions.
[14] ibid., page 35.
From October 1986, Mr Kerns performed a number of non-submariner roles at the Assistant Supervisor level.[15]
[15] ibid., page 37.
On 28 June 1987, Mr Kerns discharged from the RAN at the expiration of his engagement.[16]
[16] Exhibit 1, T4, page 26; T5, page 37.
Since 1989, Mr Kerns has worked as a security guard.[17]
[17] Exhibit 1, T9, page 166.
On 5 September 2019, Mr Kerns underwent an X-ray.[18] The findings reported that ‘lesions are suspicious for multiple myeloma in the skull, right ischial tuberosity and both proximal femora’.
[18] ibid., page 172.
On 30 September 2019, Dr Edwin Lee, Haematologist, completed a Diagnostic Report specifying that Mr Kerns has multiple myeloma with widespread skeletal involvement.[19]
[19] ibid., page 171.
On 8 October 2019, Mr Kerns made the following written statement in support of his subsequent claim to DVA for a Disability Pension the subject of this proceeding:[20]
During my RAN service 1981-1987, I spent more than four years on RN and RAN O-Boat submarines. Whilst I served as an Underwater Controller, away from the engine room, the entire submarine was filled with oily fumes which contained benzine [sic]. My clothing and skin were constantly covered with an oily residue when on board submarines.
I believe that I was exposed to benzene as specified for a cumulative total of at least 2 500 hours within a continuous period of five years before the clinical onset of myeloma and that my first exposure in that period occurred at least five years before the clinical onset of myeloma.
I have been awarded with the Australian Service Medal with a Special Operations clasp for my service aboard HMAS Otama in 1983.
[20] ibid., page 173.
On 10 October 2019, Mr Kerns received confirmation that he was ‘eligible to receive treatment funded by DVA for Cancer in Australia’.[21]
[21] ibid., pages 174-175.
On 25 October 2019, Mr Kerns attended The Canberra Hospital, following referral from Dr Lee. The completed Medical Oncology Chemotherapy Sheet lists Mr Kerns’ diagnosis as multiple myeloma and prescribes a course of treatment.[22]
[22] Exhibit 1, T8, page 153.
On 30 October 2019, Mr Kerns submitted a Claim for Disability Pension with DVA in relation to his multiple myeloma.[23] In this form, Mr Kerns stated that in June 2019 he first became aware of the signs and symptoms of his multiple myeloma, including lethargy, bone soreness, multiple infections and anaemia, and that he believed his exposure to benzene fumes for more than 2,500 hours during his service on RAN submarines caused this condition.[24]
[23] Exhibit 1, T9, pages 154-175.
[24] ibid., page 162.
On 3 December 2019, as requested by DVA, Mr Kerns completed a Claimant Report – Potential Exposures form and stated that he was exposed to benzene fumes while serving on Oberon Class submarines between November 1982 and September 1986 during periods at sea for up to 8 weeks or 1,300 patrol hours.[25] Mr Kerns further stated that this exposure occurred during normal operations and his symptoms were oily skin and clothing, which smelt of diesel fumes while on board the submarines.
[25] Exhibit 1, T12, pages 188-190.
On 28 January 2020, DVA denied Mr Kerns’ claim for a Disability Pension in relation to his multiple myeloma.[26] The delegate applied the Statement of Principles (SOP) concerning myeloma No. 70 of 2012 and found that:[27]
For a claim to succeed, at least one of the SOP factors for this condition must be met, and I must be satisfied that it is connected to your service.
Having considered all of the available evidence, I am unable to be satisfied that any of the SOP factors are met in this case.
Based on the available evidence, our contracted medical advisor has stated that there is no evidence in the documents provided to support the veteran’s contention of ‘exposure to benzene fumes…on RAN submarines’, though benzene may be present in both diesel fuel and diesel engine exhaust. Noting the veteran’s service record, HMAS Onslow and HMAS Otama were both Oberon class diesel-electric submarines. On the available evidence, we cannot link the condition of Multiple Myeloma to the veteran’s service.
[26] Exhibit 1, T14, pages 196-200.
[27] ibid., page 199.
On 16 March 2020, LCDR JL Howard, SO SP Navy, Submarines Branch with the Department of Defence confirmed to Mr Kerns’ representative that, in accordance with the VEA, Mr Kerns ‘has operational and qualifying service on submarine special operations between 1 January 1978 and the end of 12 May 1997 and the conditions of the Act have been met’.[28]
[28] Exhibit 1, T15, page 205.
On 18 March 2020, Mr Kerns requested the VRB review DVA’s decision and noted that his grounds of appeal were that:[29]
The delegate relied on SOP 70/2012 which has no factor relating to benzene. I have attached an email from LCDR Howard, Submarine Branch RAN. As you will see, Mr Kerns has operational service on submarines hence is entitled to utilize SOP 69 of 2012. I suggest that factor 6(h) applies to Mr Kerns in that his service records…show that he served for a total of 195 weeks on HMAS Otama and Onslow. This totals 32,760 hours, which exceeds the 2,500 hours required under factor 6(h).
[29] ibid., pages 201-206.
On 16 April 2020, a delegate of DVA completed a review pursuant to section 31 of the VEA. The ‘Section 31 Non-intervention File Minute’ prepared by the delegate noted that Mr Kerns had rendered operational service under the VEA, such that his claim for multiple myeloma must be considered and determined against the Statement of Principles concerning myeloma No. 69 of 2012 (SOP 69 of 2012).[30] However, the delegate was not satisfied that the relevant SOP factors were met in relation to Mr Kerns’ multiple myeloma. Following receipt of a submission from Mr Kerns’ representative on 26 April 2020, DVA did not change its view expressed in the non-intervention minute and the matter remained with the VRB.[31]
[30] Exhibit 1, T16, pages 207-208.
[31] Exhibit 1, T17, pages 209-210; T18, pages 211-212.
On 29 July 2020, the VRB published a non-binding Case Appraisal in relation to Mr Kerns’ claim.[32] In short, the appraisal was that Mr Kerns’ hypothesis concerning exposure to benzene in the course of operational submariner duties was not reasonable. It stated that a favourable resolution for Mr Kerns was not possible at that time and the application would proceed to a hearing of the VRB.
[32] Exhibit 1, T20, pages 220-228.
On 30 September 2020, the VRB affirmed the DVA decision declining Mr Kerns’ claim for a Disability Pension in relation to his multiple myeloma and relevantly found that:[33]
(a)Mr Kerns’ service aboard submarines ‘very likely’ exposed him to benzene for at least 2500 hours;[34]
(b)it was bound by the SOP factor which prescribes that benzene in liquid form must be greater than 1% by volume, but there was no material before the VRB which met that criterion;[35]
(c)Mr Kerns ‘likely inhaled benzene vapour’ during his service, but the level of benzene concentrate did not meet the requirements of SOP factor 6(h), noting that the Oberon Report (referred to further below in these reasons) measured the maximum and median concentrations of benzene to be 0.03 to 0.05 parts per million (ppm) and 0.03 to 0.04 ppm, respectively;[36]
(d)there was no material which supported the proposition that Mr Kerns was exposed to the minimum amount of benzene concentrate required under SOP factor 6(ha), being greater than 10 ppm-years of cumulative exposure;[37] and
(e)as a result, the VRB was satisfied that the evidence before it did not meet the SOP factors relied on by Mr Kerns, such that his condition was not caused by operational service aboard submarines.[38]
[33] Exhibit 1, T21, pages 229-275.
[34] ibid., page 239.
[35] ibid., page 240.
[36] ibid.
[37] ibid., page 242.
[38] ibid.
On 6 December 2020, Mr Kerns applied to the Tribunal for review of the VRB decision to refuse his claim for a Disability Pension in relation to his multiple myeloma.[39]
LEGISLATIVE INSTRUMENTS & POLICY
[39] Exhibit 1, T2, pages 9-22.
Veterans’ Entitlements Act
Section 6DB of the VEA states that:
A member of the Defence Force for whom the following are satisfied:
(a) the member has rendered continuous full‑time service on a submarine for a period that started on or after 1 January 1978 and ended on or before the end of 12 May 1997;
(b) the member has rendered continuous full‑time service on submarine special operations (the special service) at any time in the period beginning on 1 January 1978 and ending at the end of 12 May 1997;
(c) the member:
(i) has been awarded the Australian Service Medal with Clasp “SPECIAL OPS” for the special service; or
(ii) has become eligible for that award for the special service; or
(iii) would have been eligible for that award for the special service if the member had not already been awarded it for other service;
is taken to have been rendering operational service during each period covered by paragraph (a). [emphasis in original]
Subsection 7(1)(a) of the VEA provides that ‘a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service’.
Section 9 of the VEA relevantly states that:
(1) Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war‑caused injury, or a disease contracted by a veteran shall be taken to be a war‑caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c) the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d) the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war‑caused injury or a war‑caused disease;
(e) the injury suffered, or disease contracted, by the veteran:
(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.
(2) For the purposes of this Act, where any incapacity of a veteran was, in the opinion of the Commission, due to an accident that would not have occurred, or due to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran’s environment consequent upon his or her having rendered eligible war service:
(a) if that incapacity was due to an accident—that incapacity shall be deemed to have arisen out of the injury suffered by the veteran as a result of the accident and the injury so suffered shall be deemed to be a war‑caused injury suffered by the veteran; or
(b) if the incapacity was due to a disease—the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a war‑caused disease contracted by the veteran.
Subsection 13(1) of the VEA relevantly sets out that where a veteran is incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is, subject to the VEA, liable to pay a pension by way of compensation to the veteran.
Section 14 of the VEA provides that a veteran may make a claim for a pension in writing and in accordance with a form approved by the Repatriation Commission, accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim and lodged with DVA.
Section 120 of the VEA relevantly states that:
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war‑caused injury, that the disease was a war‑caused disease or that the death of the veteran was war‑caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war‑caused injury or a defence‑caused injury;
(b) that the disease was a war‑caused disease or a defence‑caused disease; or
(c) that the death was war‑caused or defence‑caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
…
(5) Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a) an injury suffered by a person is a war‑caused injury or a defence‑caused injury;
(b) a disease contracted by a person is a war‑caused disease or a defence‑caused disease;
(c) the death of a person is war‑caused or defence‑caused; or
(d) a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b) the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.

Section 120A provides that the reasonableness of a hypothesis is to be assessed by reference to a Statement of Principles, and relevantly states that:
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces; or
(iii) the British nuclear test defence service rendered by a member of the Forces.
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b) has declared that it does not propose to make such a Statement of Principles.
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Section 196B of the VEA sets out the functions of the Repatriation Medical Authority (RMA). The RMA’s main function is ‘to determine Statements of Principles’ for the purpose of the VEA and the Military Rehabilitation and Compensation Act 2004. Subsection 196B(2) provides that if the RMA:
is of the view that there is sound medical‑scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or
(b) peacekeeping service rendered by members of Peacekeeping Forces; or
(c) hazardous service rendered by members of the Forces; or
(caa) British nuclear test defence service rendered by members of the Forces; or
(ca) warlike or non‑warlike service rendered by members;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d) the factors that must as a minimum exist; and
(e) which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
Subsection 5AB(2) of the VEA states that information about a particular kind of injury, disease or death is taken to be ‘sound medical-scientific evidence’ if:
(a) the information:
(i) is consistent with material relating to medical science that has been published in a medical or scientific publication and has been, in the opinion of the Repatriation Medical Authority, subjected to a peer review process; or
(ii) in accordance with generally accepted medical practice, would serve as the basis for the diagnosis and management of a medical condition; and
(b) in the case of information about how that kind of injury, disease or death may be caused—meets the applicable criteria for assessing causation currently applied in the field of epidemiology.
For completeness, the Tribunal notes that section 175 of the VEA provides the Tribunal with jurisdiction to review a decision of the VRB affirming a decision of the Repatriation Commission. Accordingly, the Tribunal has jurisdiction to consider Mr Kerns’ application.
SOP 69 of 2012
Pursuant to subsection 196B(2) of the VEA, the RMA determined SOP 69 of 2012 concerning myeloma, which took effect from 31 October 2012.[40] For the purpose of applying SOP 69 of 2012, ‘myeloma’ is stated to mean:
a malignant disease of plasma cells, in which a single line of plasma cells accumulates and produces a monoclonal immunoglobulin. This definition includes plasma cell leukaemia, multiple myeloma and solitary plasmacytoma of bone or extramedullary plasmacytoma, but excludes monoclonal gammopathy of undetermined significance.
[40] Exhibit 2.
Clause 4 of SOP 69 of 2012 relevantly states that the RMA ‘is of the view that there is sound medical-scientific evidence that indicates that myeloma and death from myeloma can be related to relevant service rendered by veterans’.
Clause 5 states that at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person. Relevantly for this proceeding, clause 6 of SOP 69 of 2012 provides that the factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting myeloma with the circumstances of a person’s relevant service is:
(h) being exposed to benzene as specified:
(i) for a cumulative total of at least 2 500 hours within a continuous period of five years before the clinical onset of myeloma; and
(ii) where the first exposure in that period occurred at least five years before the clinical onset of myeloma; or
(ha) receiving greater than ten ppm-years of cumulative exposure to benzene before the clinical onset of myeloma, and where the first exposure occurred at least five years before the clinical onset of myeloma;
Clause 9 of SOP 69 of 2012 defines ‘being exposed to benzene as specified’, referred to at clause 6(h), to mean:
(a)having cutaneous contact with liquids containing benzene greater than 1% by volume; or
(b)ingesting liquids containing benzene greater than 1% by volume; or
(c)inhaling benzene vapour where such exposure occurs at an ambient 8-hour time-weighted average benzene concentration exceeding five parts per million;
Statement of Principles Bulletin No. 189
On 4 April 2016, the Repatriation Commission issued SOP Bulletin No. 189 to provide guidance in relation to applying SOPs containing benzene exposure factors (SOP 189).[41] SOP 189 relevantly noted that:
[41] Exhibit 1, T21C, pages 246-254.
With effect from 4 April 2016, the factors and definitions specify exposure for either 1,250 or 2,500 cumulative hours via:
· skin contact with or ingestion of liquids that have a minimum concentration of 1% benzene (except for aplastic anaemia);
· inhalation of benzene vapour at an ambient 8-hour time-weighted average benzene concentration exceeding five parts per million (ppm).
There is a second factor in each SOP (except aplastic anaemia) for exposure via inhalation of benzene vapour to a cumulative total of more than five or more than ten “ppm-years”.
Aplastic anaemia is the only non-neoplasm with a benzene factor. This condition is associated with shorter term but more intense benzene exposure. The factors in this SOP require only 30 or 45 days of exposure, but to higher concentrations (liquids with 5% benzene). There is no ppm-years factor.
One ppm-year is exposure to an average concentration of 1 ppm for 8 hours a day for 250 days a year, or the equivalent.
Some examples: 5 ppm-years = exposure to:
· 1 ppm for 8 hours a day for 1250 (250 x 5) days, or
· 5 ppm for 4 hours per day for 500 days, or
· 10 ppm for 8 hours a day for 125 days.
Benzene exposure - general
Benzene occurs naturally in fossil fuels. It is also produced by the combustion of organic matter such as wood, coal and petroleum products.
All people have low level benzene exposure from the environment. The major source is emissions/exhaust from petrol engine vehicles. Cigarette smoke is a source of exposure, particularly for active smokers. Some furnishings, solvents and adhesives also contain benzene and can contribute to benzene exposure when used indoors. Trace amounts are found in food and drinking water. Benzene breaks down in the environment and doesn’t accumulate.
Benzene has been used as a component of inks in the printing industry, as a solvent for organic materials, as a starting material and intermediate in the chemical and drug industries (e.g. to manufacture rubbers, lubricants, dyes, detergents, pesticides), and as an additive to petrol. The primary use of benzene today is in the manufacture of organic chemicals.
Occupational exposure to benzene occurs via inhalation or dermal absorption of solvents in the rubber, paint (including paint applications) and plastics manufacturing industries and in steel production. It is used as a solvent and reagent in laboratories. Exposure also occurs during crude-oil refining and chemical manufacturing. Workers involved in the transport and handling of crude oil and petrol, as well as street workers, taxi drivers and others employed at workplaces with exposure to exhaust gases from motor vehicles also experience exposure to benzene. Fire-fighters may also be exposed from the burning of organic matter and synthetic polymers like polyvinyl chloride and urethane foam.
Occupational and environmental exposures to benzene have fallen very substantially over time (since the middle of the last century), as health risks have become apparent, regulations tightened and benzene use in products lowered or eliminated.
Exposure in the environment is measured in parts per billion (ppb) of benzene vapour in air. 1000 ppb = 1 ppm. Daily mean exposure in Australian cities has been estimated at around 1 to 5 ppb (0.001 to 0.005 ppm). Higher exposure levels occur in e.g. areas with high traffic volumes, in service stations and in some industrial areas. In smokers mean exposure is around 15 ppb.
Occupational exposure levels
The current workplace exposure limit for benzene in Australia is 1 ppm of air averaged over an 8-hour period. This was lowered from 5 ppm in approximately 2003.
Estimated long-term exposure levels:
· Chemical industry and laboratory workers < 0.5 ppm
· Petroleum industry – oil and gas production < 0.1 ppm
· Petroleum industry – refining, distribution and marketing < 0.7 ppm
· Steel and associated industries < 0.7 ppm
· Vehicle mechanics < 0.2 ppm
· Workers in roadside or in-vehicle environments < 0.05 ppm
· US Air Force fuel maintenance workers < 0.1 ppm
· US Air Force fuel handling and distribution workers < 0.002 ppm
A source for comparable long-term levels in fire-fighters has not been identified, but mean short term benzene exposure in one study of civilian firefighters was < 0.4 ppm.
Benzene concentrations in fuels
Petrol:
· Current unleaded petrol contains approximately 0.6% benzene by volume. The Australian maximum has been 1% since 2006.
· In 1998 the average was 2.6% in unleaded petrol and 3.3% in premium unleaded petrol.
· Leaded petrol was phased out from 1986. Leaded petrol typically contained around 2.5% benzene.
Diesel
Typically contains 0.003 to 0.1% benzene.
…
Liquids containing benzene > 5% by volume
Liquids containing benzene > 5% by volume have been largely consigned to history. Paint strippers, rubber cements, spot removers and other hydrocarbon-containing products containing high levels of benzene began to be phased out in the 1950s, but remained available up to the 1970s.
Some AVGAS during WW1 may have contained benzene levels > 5%.
Military benzene exposure levels
Current or recent military service is generally not associated with exposure to potentially harmful levels of benzene. Of particular note – currently used military fuels have low levels of benzene (much lower than petrol) and are generally not a significant source of exposure. There may be specific occupational categories that are or were associated with increased exposure. The circumstances in each individual case will need to be carefully considered.
Measured benzene vapour in air levels for specific military settings are highly unlikely to be available.
As a generalisation, the further back in time service occurred the greater the potential for significant benzene exposure.
Applying the SOP factors
Specific detailed information about a person’s benzene exposure will typically not be available and so applying the SOP factors is unlikely to be straightforward. The factors and associated definitions provide for exposure via three pathways: skin contact; ingestion; and inhalation.
Skin contact with products containing 1% benzene could have occurred in a variety of situations, such as washing hands in petrol (pre-2006) and manually using liquid products containing ≥ 1% benzene in occupational settings without adequate skin protection. Such products were much more likely to have been used in the middle part of last century than in the last several decades. Prolonged skin contact is the pathway that (in general) provides the best prospects of meeting the SOP requirements.
Ingestion: Food and beverages may contain trace amounts of benzene (much, much lower than 1% by volume). Ingestion of any liquid containing 1% benzene would be unintentional or perhaps a deliberate act of harm. Ingestion of liquids containing 1% benzene for 1,250 or 2,500 hours is highly implausible.
Inhalation of benzene vapour at an 8-hour time-weighted average (TWA) benzene concentration exceeding five ppm is and was highly unlikely outside of some specific industrial settings or in particular circumstances in small, poorly-ventilated, enclosed spaces. A study by Glass et al on historic benzene exposure in Australia reported maximum exposure for a wide range of occupational activities that were all < 5 ppm (table 4, p. 313). Cumulative exposures of 5 or 10 ppm-years, via exposure to levels of benzene below 5 ppm were reported in the Glass et al study, but required long-term exposure. On that basis the first SOP factor covering inhalational exposure (at a TWA of 5 ppm) is unlikely to be met, but the levels in the second factor (for ppm-years) might be achievable. [emphasis in original]
EVIDENCE
Mr Kerns
While Mr Kerns did not give evidence at the Tribunal hearing, he provided the following undated statement to support his Disability Pension claim the subject of this proceeding:[42]
During my services on RAN Submarines HMAS Otama and HMAS Onslow between 1981-1987 I notice that particularly after being at sea for extended period of time having dock at which ever port we were at, we would stay in hotel/motels, unless on duty, it would take a lengthy shower to wash the dirt and smell off my skin. My kit and clothes would smell of diesel all the time, this included the civilian clothes worn during time ashore. Occasionally I would find the bed sheets were dirty the first morning after arriving.
In relation to time at sea my skin was constantly oily and cups of coffee or tea would have a slight oily skim on the top of the drink. The water use to make coffee or shower in once a week was also distilled from sea water, specific relation to my time on HMAS Otama where I served six(6) weeks in Vietnamese waters, though I don’t know the precise location as I was not privy to that information.
The sleeping bag used in my bunk would also over time have the smell and oily marks of diesel during time at sea. This was also the same for my sea going clothes which I washed several times before going back onboard.
A off hand remark my mother said years after I left the RAN was that “she always knew when I was home as she could smell the diesel through the house before she saw me” this was whether I was still in the house or not. My kit back ten (10) years after I left the RAN still smelt of diesel. [errors in original]
CONTENTIONS
[42] Exhibit 1, T21A, page 243.
Mr Kerns
The Tribunal has considered the three sets of written submissions filed in this proceeding on behalf of Mr Kerns.[43] It was contended that Mr Kerns met factor 6(h) in SOP 69 of 2012, being that he was exposed to benzene as specified for a cumulative total of at least 2,500 hours within a continuous period of five years before the clinical onset of myeloma; and where the first exposure in that period occurred at least five years before the clinical onset of myeloma. Mr Kerns submitted that this exposure occurred through cutaneous contact with liquids containing benzene, and inhalation of benzene vapour.[44] It had also previously been submitted to DVA that Mr Kerns met factor 6(ha) in SOP 69 of 2012, that is, ‘receiving greater than ten ppm-years of cumulative exposure to benzene’ before the onset of myeloma.[45]
[43] Facts, Issues and Contentions, filed on 10 March 2021, including an Addendum dated 5 April 2021; ‘Final Response’ dated 12 July 2021; and Reply submissions dated 30 January 2022.
[44] Addendum dated 5 April 2021.
[45] Exhibit 1, T19, pages 213-219.
In Mr Kerns’ undated submissions titled, Facts, Issues and Contentions, filed on 10 March 2021, it was contended as follows:
That the Dean report, cited in the CMVH report, provides no convincing scientific evidence of the amount of benzene in the diesel fuels used in Oberon Class submarines in the Royal Navy.
That the Glass Report specifically related to civilians working an 8-hour day 40-hour week, in the refinery industry in Australia. This work experience is completely different to submariners working in a confined space 24 hours a day 7 days a week.
Reports cited by Dean and Glass noted higher amounts of benzene exposure in the petroleum industry than mentioned in the DVA SOP on Benzene.
The CMVH report, in a paragraph headed “Chronic exposure to diesel vapour” noted the Gan and Mazurek paper which reported “concentrations of greater than 50 ppm were common in Oberon class submarines” (f123)
Conclusions
That there is no conclusive evidence of how much benzene was in the marine diesel fuel available in Australia nor in Singapore between 1983 and 1987.
Dean’s report did not supply any information on the diesel fuel used in Oberon class submarines.
Peer reviewed reports by Gan and Mazurek and in the Glass report, suggest higher benzene levels than reported in the CMVH report and the benzene SOP.
The CMVH report mentions high levels of diesel exposure inside Oberon class submarines.
The benzene SOP mentions numerous ‘exceptions’ to the general thrust of the information presented.
In essence there is no conclusive evidence to reliably assert what percentage of benzene was contained in the diesel fuel used in the Oberon class submarines in which Mr Kerns served between 1983 [and 1986]. However there is evidence that diesel fuel and vapours were present to the extent that the submariners skin would stain sheets even after showering.
In an addendum to Mr Kerns’ abovementioned submission, dated 5 April 2021, it was submitted as follows:
Mr Kerns meets factor 6(h)(i) & (ii) and under subheading “being exposed to benzene as specified” factor 9(a) & (c).
Reasonable Hypothesis
That the benzene content in the marine diesel fuel used in Australian Oberon class submarines has not been proved and may have been 1% or more.
Mr Kerns served on operational service for 3.75 years on HMAS Otama and HMAS Onslow and during that time he was exposed to benzene vapour in concentrations which may have equalled or exceeded five parts per million and which may have come from diesel fuel or cigarette smoke or a combination of both.
He was also having cutaneous contact, 24 hours a day, with diesel residue, which may have contained benzene equal to or greater than 1% by volume.
As the references indicate, there is no reliable evidence which can, beyond reasonable doubt, disprove that the claimant did ingest the level of benzene required by the relevant SoP.
In Mr Kerns’ Reply, dated 30 January 2022, to the Repatriation Commission’s Statement of Facts, Issues and Contentions, he contended that:
The interior of the Oberon boats would have contained benzene from all eight of the Chemical Hazards listed above [being ‘Benzene, ethylbenzene, cigarette smoking, diesel emissions, diesel vapour emissions associated with leaky pipe work, diesel Exhaust Particulates, diesel fuel and white spirits’].
The Respondent has not provided any reliable evidence on the benzene content from the marine diesel used in Australian Oberon boats between 1983 and 1986, including any diesel fuel taken on in Singapore during that period. Hence they cannot say what percentage of benzene was in the marine diesel used during the Applicant’s War Service.
Mr Kerns was subject to a cocktail of substances that contain benzene during his War Service.
The Applicant does not bear the onus of proof, the Respondent does, and the Respondent…has not proven beyond reasonable doubt that the diesel fuel used in the Oberon submarines on which Mr Kerns served contained less than 1% of benzene.
Repatriation Commission

The Repatriation Commission took no issue with Mr Kerns’ diagnosis of multiple myeloma and the date of its clinical onset, being 1 June 2019. The Repatriation Commission also conceded that the material before the Tribunal raised a hypothesis that Mr Kerns’ multiple myeloma was war-caused because he was exposed to benzene in the course of his duties onboard Oberon Class submarines.
However, the Repatriation Commission contended that the relevant factors in SOP 69 of 2012 require that the material that raises the hypothesis go further than simply establishing exposure to benzene. The Repatriation Commission submitted that, based on the available evidence, Mr Kerns’ claim did not meet the essential elements of the definition of ‘being exposed to benzene as specified’ in SOP 69 of 2012. In this regard, the Repatriation Commission contended that Mr Kerns’ hypothesis was speculative. That is, there is a bare possibility that the relevant SOP thresholds were exceeded and Mr Kerns’ hypothesis asks the Tribunal to infer or assume that the essential elements in SOP 69 of 2012 are met.
Accordingly, it was submitted by the Repatriation Commission, Mr Kerns’ application cannot succeed and the VRB decision under review should be affirmed.
CONSIDERATION
Did Mr Kerns render eligible war service?
It was not in dispute between the parties that Mr Kerns is a veteran who has rendered the requisite operational service under the VEA. Section 6DB of the VEA relevantly provides that a member of the Australian Defence Force is taken to have rendered operational service where they served full-time on a submarine for a period starting on or after 1 January 1978 and ending on or before 12 May 1997, the service was on ‘submarine special operations’, and the member has been awarded the Australian Service Medal with Clasp “SPECIAL OPS” for the special service.
As set out above in these reasons, Mr Kerns enlisted with the RAN in 1981 and discharged in 1987. He was posted to Oberon Class submarines HMAS Otama from 26 January 1983 and HMAS Onslow from 29 August 1983 until 27 October 1986. Therefore, as required by the VEA, Mr Kerns rendered continuous full-time service on a submarine for a period between the years 1978 and 1997, specifically being from 26 January 1983 to 27 October 1986. Additionally, on 17 April 1983, Mr Kerns was awarded the Australian Service Medal with Special Operations Clasp in relation to his service. Accordingly, under section 6DB of the VEA, Mr Kerns’ service with the RAN from 26 January 1983 to 27 October 1986 is taken to be ‘operational service’. Mr Kerns’ other periods of service, from 29 June 1981 to 15 January 1983, and from 28 October 1986 to 28 June 1987, are deemed to be ‘defence service’ under subsection 68(1) of the VEA.
Pursuant to subsection 7(1)(a) of the VEA, which provides that ‘a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service’, Mr Kerns is taken to have rendered eligible war service from 26 January 1983 to 27 October 1986.
What is the kind of disease suffered by Mr Kerns?
The Tribunal is satisfied, based on the medical evidence, that Mr Kerns has multiple myeloma. This condition was diagnosed by Dr Edwin Lee, Haematologist, in September 2019.[46]
[46] Exhibit 1, T9, page 171.
When was the clinical onset of the disease?
The Tribunal finds, on the available evidence, that the clinical onset of Mr Kerns’ multiple myeloma was 1 June 2019, as he stated in the Claim for Disability Pension document lodged with DVA.[47] In this regard, the reported signs and symptoms of Mr Kerns’ multiple myeloma from June 2019, including lethargy, bone soreness and anaemia, were found by the Compensation Medical Advisor in January 2020 to be ‘entirely in keeping with the typical presentation of this disease condition’.[48]
[47] ibid., page 162.
[48] Exhibit 1, T13, page 194.
What are the applicable steps to determine Mr Kerns’ claim for a Disability Pension?
As previously stated in these reasons, the primary issue before the Tribunal is whether Mr Kern’s multiple myeloma was ‘war-caused’ pursuant to the VEA.
The Full Court of the Federal Court of Australia in Repatriation Commission v Deledio (1998) 83 FCR 82 (Deledio) at 97-98 described what is required of a decision-maker under the VEA in determining whether the incapacity of a person from injury or disease, or the death of a person, related to relevant service rendered by that person, as follows:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
As the Tribunal observed in Dougherty and Repatriation Commission [2019] AATA 706 at [40]:
The Federal Court has emphasised that strict reliance on the ‘Deledio principles’ as if they were a legislative mandate would be an error: Hill v Repatriation Commission [2005] FAFC 23; [2005] FCAFC 23; (2005) 85 ALD 1 at 16 – 17. However, as Deputy President Sosso observed in Brackin, ‘the Deledio ‘methodology’ is a useful tool in guiding decision-makers through the byzantine maze of veterans’ affairs law and assists in preventing the decision maker falling into error’ at [41] citing Logan J in Blain v Repatriation Commission [2017] FCA 114 at [9].
Does the material raise a hypothesis that Mr Kerns’ multiple myeloma was war-caused?
This is the first step of the consideration process identified in Deledio: whether the material before the Tribunal points to a hypothesis connecting Mr Kerns’ multiple myeloma with the circumstances of his service.
Mr Kerns contended that he was exposed to benzene during his service with the RAN on Oberon Class submarines through exposure to diesel fuel or cigarette smoke or a combination of both and cutaneous contact with diesel residue, which caused his multiple myeloma.
The Tribunal is satisfied that the material before it points to Mr Kerns being exposed to diesel fuel vapours during his service with the RAN on Oberon class submarines. The Final Report on the Oberon Class Submarine Occupational Hygiene Project prepared by the Centre for Military & Veterans’ Health and dated 28 February 2006 (Oberon Report) noted that diesel vapour was a ‘significant’ exposure risk for Oberon class submariners, with the most exposed crew being in the engine room.[49]
[49] Exhibit 1, T6, page 42. See also pages 44, 75-78 and 123.
By way of background, the Executive Summary to the Oberon Report noted that:[50]
The Centre for Military and Veterans' Health was tasked with creating a hazard exposure profile for Australian Oberon class submariners. These submarines, in service during the period 1967 – 2000, have now been decommissioned and thus this report represents a retrospective exposure assessment.
In developing the exposure profile, reference was made to the available scientific and technical literature. It rapidly became apparent that systematic occupational hygiene and health studies of Oberon class or even diesel electric submarines are rare and with few exceptions, the quality of exposure information is poor. Beyond the literature review, the CMVH team, which included two senior occupational hygienists for the bulk of the work, visited the decommissioned HMAS ONSLOW, conducted focus groups in Sydney and Rockingham, spoke with several experienced submariners and triangulated the evidence to arrive at the hazard exposure profile and inform the conclusions and recommendations.
[50] ibid., page 41.
The Oberon Report also provided the following relevant history regarding this class of submarine used by the RAN and the context of its study:[51]
The Oberon Class Submarines were first acquired in 1967 and were the first Australian submarines since the decommissioning of the K9 in 1944. In the interim, The Royal Navy Fourth Submarine Flotilla was based in Australia and utilized only for anti-submarine training, by both the Australian and New Zealand navies and air forces. In the early 1960s, strategic thinking started to change and it was recognized that an ‘operational submarine strike force’ would be a worthwhile acquisition for the Royal Australian Navy (RAN).
The conventional diesel-electric submarines were preferred over the nuclear powered submarines, primarily because of cost. In 1963, Australian government approval was given for the construction of eight Oberon Class submarines in the UK.
The Oberon Class was developed from the Porpoise Class and at the time was considered to be a very efficient and effective submarine in that it could recharge its batteries and exchange air whilst submerged and was very quiet whilst running, thus avoiding detection.
HMAS OXLEY was the first Oberon commissioned in April 1967 and HMAS PLATYPUS, the submarine squadron base, was commissioned on the same day, hence the Fourth Submarine Squadron (RAN) was formed. OXLEY was followed by HMAS OTWAY in 1968, HMAS OVENS and HMAS ONSLOW in 1969, HMAS ORION in 1977 and finally HMAS OTAMA in 1978 to complete the squadron with six submarines instead of the original eight.
…
In 1987, the second submarine base was commissioned in West Australia, HMAS STIRLING. This base was the home of HMAS OXLEY until OXLEY paid off (was decommissioned) in 1992. The five remaining Oberon submarines were phased out over the ensuing period as the new Collins Class submarines started to be commissioned. The last remaining Oberon submarine, HMAS OTAMA was decommissioned in 2000.
In recent years, concerns have been raised regarding the poor working conditions experience by Navy personnel deployed on the Oberon Class submarines, and the potential adverse health effects of this environment. There has been anecdotal evidence from personnel who served on the Oberon submarines of several health conditions they believed to have been caused by their work. In addition, many current and former submariners have had difficulty in having Department of Veterans’ Affairs (DVA) claims accepted due to the lack of recognition of the hazards experienced during their submarine service. It is hoped that better authoritative documentation of the known hazards will assist the decision-making process for compensation claims, particularly at the primary level, that is, within the rule base.
The Centre for Military and Veterans’ Health (CMVH) was sponsored by the Defence Health Service (DHS) to undertake an investigation of the potential risks and hazards of service on the Oberon submarine. The project is a retrospective occupational hygiene survey of the Oberon Class Submarine. The survey attempts to identify known hazards of the Oberon Class HMA Submarine and, where possible, estimates exposures and risk of harm.
[51] ibid., page 46. Footnotes omitted.
The Oberon Report noted that, in order to create ‘the exposure profile’, the following approach was adopted:[52]
Firstly, a literature review of hazards in Oberon class submarines was undertaken, utilizing the services of a professional librarian, military contacts and other leads. Some of the literature described submariner morbidity and mortality, which together with an understanding of toxicology and epidemiology, may shed some light on likely exposures.
Secondly, a tour of the decommissioned HMAS ONSLOW was carried out to assess static characteristics of the submarine, and to put exposures into context. Experienced submariners were able to act as tour guides, describing the tasks performed and equipment used.
Thirdly, focus groups of Oberon class submariners were engaged to identify hazards and to describe their experiences.
Fourthly, individuals with an expert knowledge of Oberon class submarines and operations were consulted about time activity patterns, and likely sources/pathways of exposure.
Finally, information from the abovementioned sources was triangulated, with professional judgement, to deduce the exposure profile, according to hazard category.
[52] ibid., page 52.
The Oberon Report rated exposures as ‘significant’ or ‘low’.[53] The quality of evidence in support of an exposure rating was graded as ‘good’, ‘medium’ or ‘poor’, based upon: the presence or absence of published exposed data; professional judgment in conjunction with focus group information and observation; and lack of availability, inadequacy or purely a presumption of exposure, based on indirect information.[54] This approach was described as ‘pragmatic’, attempting to utilise all information, yet acknowledging weaknesses.[55] The Oberon Report also stated that the outcome was a measure of ‘exposure’ and not ‘risk’.[56]
[53] ibid., page 52.
[54] ibid., page 52.
[55] ibid.
[56] ibid.
The Oberon Report commented in relation to its literature review that:[57]
It is obvious from the above papers that there is a lack of published occupational health data on the concentrations of the various pollutants in the Australian submarine environment, specifically for the Oberon Class. The monitoring results cannot be compared with occupational health exposure guidelines as the monitoring does not conform to practices used by occupational hygienists for assessing exposure of persons at work.
[57] ibid., page 58.
In relation to submariners’ exposure to hazardous substances, the Oberon Report stated that:[58]
There is strong anecdotal evidence that the exposures were tolerated, or volunteered, rather than regulated. Conditions were highly variable, such that peak exposures at the limit of tolerability were often encountered. The impact of intermittent peak exposures on chronic disease risk is uncertain, but the recent occupational health literature suggests that it can be important, that is, it may sensitise the body or result in subclinical health decrements, and be exacerbated in later years.
In conclusion, the occupational hygiene literature for Oberon class submarines appears to be sparse. Whilst engine room crew probably experienced a range of significant exposures by virtue of their proximity to the diesel engines, all of the crew were exposed to a cocktail of substances, by multiple routes. A number of factors blur the distinctions, and direct comparison with exposure criteria is problematic.
However, the exposure profile shown in Tables 4 and 5 illustrate that significant exposures to diesel vapour, other particles, carbon monoxide, carbon dioxide and oxygen (lack of) occurred on the Oberon Class submarine. Additionally, Oberon submariners were significantly exposed to the more traditional types of workplace hazards such as noise, heat, musculoskeletal and psychological hazards. Whilst these types of hazards are not unique to the Oberon submarine the context, of confined spaces and 24 hour exposures, in which the submariners were exposed was unique. In addition, the limited washing facilities and potential for synergistic exposure, e.g. between noise and solvents, need to be acknowledged.
Although it is impossible to re-evaluate most exposures, it may be feasible to undertake biomechanical hazard assessments post hoc, e.g. simulating tasks in the decommissioned submarines to strengthen the level of evidence.
[58] ibid., page 44.
In addition to diesel vapour, the Oberon Report noted that the smoking of cigarettes was allowed on submarines.[59] It classed cigarette smoke as a hazard and ‘major air contaminant’.[60] Exposure to cigarette smoke was also identified as a hazard by former Oberon submariners with at least three years active service participating in two focus groups totalling 25 people conducted for the Oberon Report, which subsequently noted that:[61]
Cigarette smoking caused the most comment by participants. The participants are now aware of the health dangers of smoking (and passive smoking) and agreed that they were heavily exposed.
“And passive smoking in a contained area – it was literally you could not see through it. So we ourselves agreed that half could smoke now and when they’ve finished it that half can have a smoke. And that’s exactly how we did it, so we could see the movie. And of course halfway through the movie, action stations, action stations – he’s at it again – everyone was out of the movie and has gone smash bang, and so life goes on”
[59] ibid., page 56.
[60] ibid., pages 109 and 122.
[61] ibid., pages 94 and 103.
In relation to skin exposure to diesel residue in the submarine environment, the Oberon Report referred to anecdotal reports from focus group participants of the presence of diesel residue throughout Oberon Class submarines, causing surfaces to be damp, and settling on the surface of liquids. Mr Kerns provided a similar opinion in his statement that was before the Tribunal. The Oberon Report stated that:[62]
[62] ibid., pages 96 and 102.
The diesel laden environment was one of many concerns submariners had regarding the conditions that they lived in upon the Oberon. During operation diesel fumes and diesel residue were perceived to be throughout the atmosphere.
“One of the other problems that also is constant, permanent in submarines is that all the surfaces were damp and that was not through moisture damp; that was through diesel dampness. Because little droplets of diesel covered everything…”
“If you were in your bunk when they fired a torpedo or did a water shot, you’d get a puff of this black stuff (carbon) come out of your ventilation…”
One participant’s comment, on visitors’ reactions to the submarine display at the maritime museum, demonstrates the pervasive nature of diesel.
“And they can all smell the diesel fuel. Now this boat doesn’t have a battery anymore; there’s no diesel fuel on board. So, the inside of OVENS it still retains all the things that we lived with thirty years ago”
Service on other submarines, such as the Collins Class, and exposure to contemporary occupational health and safety (OH&S) programs highlighted for the men the occupational health hazards they had faced on the Oberon. Specific mention was made of the differences between construction of the ventilation system and compartments between the Oberon and Collins Class.
“It was an open engine room (the Oberon). Not like the Collins Class, they run with the door shut; the engine room is an enclosed area. So what immensely different to the Collins Class and the Oberon is that there is no diesel smell outside the engine room on a Collins Class submarine.”
“Passage ways open, and they had to because that’s where the air came into the submarine. To get air into the engine room you had to run with the door open. So at all times, the diesel fumes, the diesel noise, and the oil in the engine room then when the diesel shut down drifted through the submarine. It was part of the ventilation system that actually carried it because as soon as the fumes came out of the engine room… There’s your engine room there, the fumes used to come out of the engine room, go down into the AMS—that’s where they were saying before where the fans are—and the fans in AMS would distribute the fumes throughout the submarine through the ventilation system.”
…
Exposure to diesel fumes, diesel residue and other chemicals was identified by most men as one of the most hazardous exposures. Constant exposure and lack of adequate hygiene facilities meant that the men felt they literally absorbed the chemicals.
“Then let it stand for maybe a minute of something, then lean over the sink and go ‘whew’ and that would have given a chance for the diesel to settle out and become scum on the top…”
“You do a long period at sea and then check into a hotel in say somewhere like Singapore OK. And you go to bed, have a shower, have a spa, do whatever you like. Go to sleep on a white sheet and when you wake up in the morning, you can see the yellow outline of your body on the sheet”

As previously set out in these reasons, Mr Kerns’ RAN service records list him as having been posted to the Oberon Class submarines, HMAS Otama and HMAS Onslow, between 1983 and 1986.[63] While Mr Kerns’ diagnosis from 2019 of multiple myeloma is accepted, there was no medical evidence before the Tribunal in relation to the cause of his condition.
[63] Exhibit 1, T7, page 150.
In this regard, although Mr Kerns’ hypothesis requires the Tribunal to infer or assume some elements, the Tribunal accepts that the available material points to a hypothesis connecting Mr Kerns’ multiple myeloma with the circumstances of his operational service.
Accordingly, the Tribunal finds that the first step outlined in Deledio is met.
Is there a Statement of Principles in force?
This is the second step of the consideration process identified in Deledio: whether there is a Statement of Principles in force determined by the RMA under subsections 196B(2) or (11) of the VEA.
The RMA determined SOP 69 of 2012 concerning myeloma under subsection 196B(2) of the VEA and it commenced on 18 September 2017. However, it was repealed upon the commencement of the Statement of Principles concerning myeloma (Reasonable Hypothesis) (No. 95 of 2021) on 20 September 2021. Despite this, the parties in this proceeding agreed that SOP 69 of 2012 was the applicable SOP in relation to Mr Kerns’ application before the Tribunal. SOP 69 of 2012 was in force at the time of Mr Kerns’ claim to DVA for a Disability Pension, it was the relevant SOP considered in the VRB’s reviewable decision and it was in force at the time of Mr Kerns’ application to the Tribunal. Moreover, the relevant provisions in SOP 69 of 2012 were unchanged by the SOP now in force, being SOP No. 95 of 2021.
Accordingly, the Tribunal is satisfied that the second step outlined in Deledio is met.
Is the hypothesis a reasonable one?
This is the third step of the consideration process identified in Deledio. As set out above in these reasons, under subsection 120(5)(b) of the VEA, nothing in the VEA entitles the Repatriation Commission (or, here, the Tribunal) to presume that a disease contracted by a person is a ‘war-caused disease’. Accordingly, the Tribunal is not entitled to presume that Mr Kerns’ multiple myeloma is war-caused.
Additionally, subsection 120(6) of the VEA expressly does not impose any onus on either a claimant or the Commonwealth to prove any matter ‘that is, or might be, relevant to the determination of the claim or application’. That is, there is no formal onus on Mr Kerns in relation to making out his claim, or on the Repatriation Commission in relation to disproving Mr Kerns’ claim. However, the Tribunal must be satisfied that the requirements of the VEA are met in order to find that Mr Kerns’ multiple myeloma is a war-caused disease.
As was explained by the Federal Court of Australia in Beezley v Repatriation Commission (2015) 150 ALD 11, at [68]:
In any case before a merits review tribunal (or a first instance decision-maker), a decision can only be made on the basis of relevant and probative material. The material must be probative of the matters for which the statute provides: see Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666 ; 4 ALD 139 ; 1A IPR 708 ; 44 FLR 41 per Deane J. If an applicant does not provide evidence and information sufficient to meet the statutory requirements, an applicant is unlikely to have the statutory power exercised in her or his favour. And unless and until a decision-maker is satisfied, or persuaded, that the requirements are met, then no occasion to exercise the power in favour of an applicant arises. In that sense, as a practical matter, it is not incorrect to say that a person “must satisfy” the requirements in the statute. To say that is not to impose an onus of proof on an applicant, but rather to recognise the operation of the legislative scheme under which the person seeks a benefit or interest.[64]
[64] See generally, McDonald v Director-General of Social Security (1984) 1 FCR 354 at 356–7 and 358 ; 6 ALD 6 at 9–10 and 11 (per Woodward J), at FCR 366 ; ALD 19 (per Northrop J) and at FCR 369 ; ALD 21 (per Jenkinson J); Ward v Western Australia (WAG6006 1995 and WAG6002 of 1996) (1996) 69 FCR 208 at 215–8 ; 136 ALR 557 at 565–8 ; and Evans (as executor for the estate of the late Evans) v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2012) 289 ALR 237 ; [2012] FCAFC 81 at [18] and the cases there cited.
Pursuant to section 120A of the VEA, the reasonableness of Mr Kerns’ hypothesis must be assessed by reference to a SOP determined by the RMA under subsection 196B(2) of the VEA in respect of his particular disease. Here, that is SOP 69 of 2012 concerning myeloma. As the Federal Court said in Repatriation Commission v Hill [2002] FCAFC 192 (Hill) at [55], a hypothesis connecting a disease with war service will only be reasonable if the material that raises it includes ‘all of the essential elements prescribed by the SoP’. Importantly in this regard, the Federal Court in Ellis v Repatriation Commission [2014] FCA 847 (Ellis) at [63] said that:
It is not open to the AAT to infer or assume that the essential elements of a hypothesis are met. Its task was and remains that described earlier – to determine whether the whole material raises a reasonable hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the veteran.
In East v Repatriation Commission [1987] FCA 242 (East), the Full Federal Court at [41]-[42], approved the following formulation in relation to what constitutes a ‘reasonable’ hypothesis:
"A hypothesis may be conveniently defined as: 'proposition made as basis for reasoning, without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption': The Concise Oxford Dictionary.
...
The addition of the word 'reasonable' would however seem to imply that what is required is more than a mere hypothesis. In the opinion of the Board, to be reasonable, a hypothesis must possess some degree of acceptability or credibility -- it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be 'raised' by material before the Board, we think it must find some support in that material -- that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis. At the same time, however, a hypothesis may be reasonable without having been proved (either on the balance of probability or beyond reasonable doubt) to be correct as a matter of fact. Were it otherwise, it would no longer be a hypothesis but would have been elevated to some higher status. Accordingly a connection asserted by a hypothesis to exist between death or incapacity and service may still be reasonable even though theoretical, and it may be theoretical in either or both of at least two senses: by postulating a known medical fact but in circumstances not known to have definitely existed in the instant case; or by postulating a medical principle which science is not yet able to definitely prove but is unable to describe as unreasonable."
We agree with this analysis. 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.
Following the decision in East, the Federal Court further observed in Bull v Repatriation [2001] FCA 1832 [at 18] that:
It is important to understand the following about East. The Court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable. The material must point to the connecting hypothesis.
A hypothesis connecting a disease with a person’s war service will only be reasonable if the material raises all of the essential elements prescribed by the relevant SOP, per Hill at [55]. As set out in Ellis at [63], it is not open to the Tribunal to infer or assume that the essential elements of a hypothesis are met. The principle in East, set out above in these reasons, was applied by the Tribunal in Budge and Repatriation Commission [2014] AATA 276 at [39]. Additionally, the relevant hypothesis must ‘find some support’ in the material, and the material must ‘point to, and not merely leave open’ the hypothesis relied upon.[65] As a result, a ‘mere possibility’ is not sufficient to make a hypothesis reasonable.[66]
[65] Forrester v Repatriation Commission [2013] FCA 898 at [14]; Ellis at [15].
[66] Repatriation Commission v Bey (1997) 79 FCR 364 at 372.
As previously set out in these reasons, clause 6 of SOP 69 of 2012 prescribes the requirement for the existence of the following essential elements in relation to the benzene exposure factors before it can be said that a reasonable hypothesis has been raised connecting myeloma with the circumstances of a person’s relevant service:
(h) being exposed to benzene as specified:
(i) for a cumulative total of at least 2 500 hours within a continuous period of five years before the clinical onset of myeloma; and
(ii) where the first exposure in that period occurred at least five years before the clinical onset of myeloma; or
(ha) receiving greater than ten ppm-years of cumulative exposure to benzene before the clinical onset of myeloma, and where the first exposure occurred at least five years before the clinical onset of myeloma;
The term ‘being exposed to benzene as specified’ at clause 6(h) of SOP 69 of 2012 is defined at clause 9 to mean:
(a) having cutaneous contact with liquids containing benzene greater than 1% by volume; or
(b) ingesting liquids containing benzene greater than 1% by volume; or
(c) inhaling benzene vapour where such exposure occurs at an ambient 8-hour time-weighted average benzene concentration exceeding five parts per million;
Based on all the material, the Tribunal is not satisfied that it raises a reasonable hypothesis connecting Mr Kerns’ disease with the circumstances of his service. Specifically, the material does not point to either cutaneous contact with liquids containing benzene greater than 1% or inhalation of benzene vapour exceeding 5 parts per million as required by clause 6(h) of SOP 69 of 2012 in order to meet the essential elements of the definition of ‘being exposed to benzene as specified’ in SOP 69 of 2012. For the avoidance of doubt, the material also does not point to greater than 10 parts per million of cumulative exposure pursuant to clause 6(ha) of SOP 69 of 2012. Mr Kerns’ hypothesis does not find support in the material, which must point to, and not merely leave open, a hypothesis being reasonable.
As set out in Mr Kerns’ submissions, extracted above in these reasons, he contended that: the benzene content in marine diesel fuel used in Oberon Class submarines may have been 1% or more; he was exposed to benzene vapour in concentrations which may have equalled or exceeded five parts per million; and he was having cutaneous contact, 24 hours a day, with diesel residue, which may have contained benzene equal to or greater than 1% by volume. The Tribunal notes that Mr Kerns did not contend that he ingested liquids containing benzene greater than 1% by volume.
While acknowledging the undoubtedly challenging conditions aboard the Oberon Class submarines and the difficult nature of Mr Kerns’ present disease, the Tribunal finds that the hypothesis put forward on his behalf is speculative. That is, on all the available material, there is, at best, a mere possibility that the relevant thresholds in SOP 69 of 2012 were met. In this regard, Mr Kerns essentially asked the Tribunal to infer or assume that the essential elements of the definition of ‘exposure to benzene as specified’ were satisfied, by leaving open the possibility that the thresholds prescribed by SOP 69 of 2012 for benzene concentration in air and liquids were met. The Tribunal is not satisfied that the material before it points to the requisite levels for exposure to benzene in SOP 69 of 2012, relevantly being cutaneous contact with liquids containing benzene greater than 1% by volume or inhalation of benzene vapour where such exposure occurs at an ambient 8-hour time-weighted average benzene concentration exceeding five parts per million. The material does not point to benzene volumes or concentrations at these levels in order to meet the minimum factors required under SOP 69 of 2012 before it can be said that a reasonable hypothesis has been raised connecting myeloma with the circumstances of Mr Kerns’ service. The material before the Tribunal points to benzene exposure levels during Mr Kerns’ operational service on Oberon Class submarines that were below the requisite thresholds set out in SOP 69 of 2012 to establish a reasonable hypothesis that the disease is linked to his service. Furthermore, the Oberon Report suggested that, while it was difficult to assess which members of the Oberon Class submarine crew had the greatest benzene exposure, engine and machine room operators ‘would have had greater exposure, by virtue of diesel exposure, the use of oily rags etc’.[67] Mr Kerns’ written evidence was that he did not work as an engine or machine room operator during his operational service on Oberon Class submarines, although he plainly was exposed to diesel and cigarette smoke, and therefore likely exposed to some level of benzene, during this service. However, on all the available material, benzene exposure in Oberon Class submarines was well below the requisite level to raise a reasonable hypothesis linking it to Mr Kerns’ multiple myeloma.
[67] Exhibit 1, T6, page 122.
As previously stated in these reasons, the Oberon Report identified the lack of published occupational health data on the concentrations of the various pollutants in the Australian submarine environment. In relation to overseas studies relating to Oberon Class submarines, the paper written by Severs and Sabiston in 2000, titled ‘An Air Quality Assessment Onboard an Oberon Class Submarine: MMCS Okanagan’, was referred to as ‘the best paper available in relation to an occupational hygiene survey of the Oberon class submarine’.[68] The Oberon Report set out the paper’s ‘charcoal tube analysis of the diesel organics measured in the Fore-Ends, Accommodation Space, Control Room, and Engine Room’ from the Oberon Class submarine and which listed the concentration range for benzene as ‘0.087 – 0.249’ mg/m³, which was later stated in the Oberon Report to be the equivalent to 0.027 to 0.078 parts per million.[69] These reported benzene exposure levels, together with others referred to in the Oberon Report, fall well below the requisite levels set out in SOP 69 of 2012.
[68] ibid., page 64.
[69] ibid., pages 65 and 75.
For completeness, the Tribunal extracts below the section of the Oberon Report regarding benzene:[70]
1. Dean (1996) calculated the risk of contracting chronic myeloid leukemia (CML) from benzene exposure during patrols over 13 years. He used the benzene concentration data from reports from that period. The maximum and median concentrations were 830 μg/m³(0.26 ppm) and 189 μg/m³(0.06 ppm) respectively. This monitoring data was obtained from nuclear submarines. Measurements on two Oberon Class submarines gave readings of 90-150 μg/m³(0.03-0.05 ppm ) and 90- 120 μg/m³(0.03-0.04 ppm) respectively. The paper does not state the duration of samples or the locations where the samples were taken. In the paper Dean used 40 ppm-years (0.5 – 6.6 additional leukemia cases per 1000 exposed workers) as the cumulative dose for the risk calculation.
The paper identifies a potential exposure to benzene in relation to venting of outboard diesel tanks inboard to allow for the increasing seawater pressure during diving.
2. A recent study by Glass et al (2005) of the Australian petroleum workers found a strong association between benzene and leukemia at exposure doses greater than the cumulative dose of 16 ppm-years.
3. Severs & Sabiston (2000) reported levels of benzene in the range 87 – 249 μg/m³(0.027 – 0.078 ppm) onboard HMCS Okanagan which is consistent with the results reported by Dean (1996).
4. As benzene is an ingredient of diesel fuel and diesel exhausts, Boffetta (2004) has reviewed the published epidemiological studies involving diesel exhausts to evaluate whether there is evidence to support that diesel exhaust exposure increases the risk of leukemia, and Acute Myeloid leukemia (AML) in particular. A total of 27 studies and reports were considered. Studies covered a wide range of occupations and industries. The conclusion was that available evidence did not support the hypothesis that there was an association between diesel exhausts and risk of leukemia and AML in particular.
5. In a very recent paper (Kopstein (2006)) advised listing of benzene in Material Safety Data Sheets (MSDSs) be mandatory even if present as a trace contaminant (< 0.1%). Kopstein states that workers using petroleum based solvents, e.g., mineral turps or white spirits, may be exposed to time weighted average concentrations of benzene in excess of the ACGIH TLV [Threshold Limit Value] of 0.5 ppm, depending on duration of exposure.
Comment. During the visit of HMAS ONSLOW and the focus group discussion the submariners stated that they used white spirit to wash down oily surfaces. Taking Kopstein’s work into consideration the exposure to benzene may therefore have been higher than indicated by the air monitoring results presented above if personal measurements were done whilst hydrocarbon solvents were used.
[70] ibid., pages 74-75.
In relation to this comment regarding cleaning oily surfaces with white spirit and potentially higher exposure to benzene than the monitoring results, the Tribunal notes that there was no direct evidence from Mr Kerns about him performing this task during his service or, if he did, that the substance used contained benzene greater than 1% by volume with which he had cutaneous contact, being the level required by SOP 69 of 2012. The available material did not point to benzene at these levels on Oberon Class submarines. On all the material before the Tribunal, Mr Kerns’ hypothesis regarding exposure to benzene does not meet the essential elements required under SOP 69 of 2012 to establish it as a reasonable hypothesis connecting his multiple myeloma with operational service.
It was submitted on Mr Kerns’ behalf that the 1996 article by Surgeon Commander M R Dean, Benzene exposure in Royal Naval submarines, from the Journal of the Royal Society of Medicine (Dean),[71] was scientifically unsound in relation to benzene levels in Oberon Class submarines. This submission is not accepted by the Tribunal, including because Dean is referenced in the Oberon Report in relation to Dean’s findings on benzene levels in Oberon Class submarines, which were said to be consistent with what was described as the ‘best paper available in relation to an occupational hygiene survey’ of that submarine class.[72] The Oberon Report also does not make any adverse comment or finding regarding the scientific basis of Dean’s article. For completeness, the Tribunal sets out below the relevant material from Dean, as follows:[73]
[71] J R Soc Med 1996, 89, pages 286-288.
[72] Exhibit 1, T6, page 64.
[73] Exhibit 13.
A Royal Naval submariner recently developed chronic myeloid leukaemia (CML) after 13 years’ service in the submarine flotilla. Submarines often spend weeks at a time submerged and during this time the atmosphere becomes contaminated with a variety of gases and aerosols. One such contaminant, benzene, is a known leukaemogenic agent. The question therefore arose as to whether the leukaemia had been precipitated by benzene exposure during the man’s submarine service. The Institute of Naval Medicine was tasked with investigating the case.
…
It has been estimated that about two million workers in the USA are potentially exposed to benzene. Most exposures are related to the coke, rubber, transportation, and petroleum/benzene production industries.
Use of benzene, prior to the early 1970s particularly, as a solvent often resulted in concentrations in workplace air of up to 500 parts per million (ppm) with peak values > 1000 ppm. Over recent decades the majority of personal exposure (probably around 90%) is below 1 ppm. This reduction in exposure is due to increased awareness of the health risks associated with benzene and improved industrial hygiene practices.
The most significant adverse effects recorded from occupational exposure to benzene are haematotoxicity, immunotoxicity, genotoxicity and carcinogenicity (in particular the development of leukaemia). Increased leukaemia risk was identified in studies in the shoe making industries, chemical workers and in oil refinery personnel. Most of the studies concerned exposure to high levels of benzene (in the order of 100-200 ppm over an 8 h working day, 40 h per week).
…
Recent epidemiological studies demonstrate a direct correlation between the level of exposure (down to about 5 ppm), the duration of exposure and the incidence of leukaemia. Below exposure levels of 5 ppm no statistical relationship between exposure to benzene and the likelihood of developing leukaemia can be shown. It has been necessary to extrapolate the data from reliable epidemiological studies, using mathematical modelling, to provide an estimate of the risks below exposure levels of 5 ppm.
…
The submariner had served in nine submarines over a 153 month period. One hundred and twenty-nine months of these were in nuclear submarines, 24 months in conventional boats. It is not known precisely what percentage of this time was spent at sea. A reasonable assumption would be to estimate that approximately 6 years in total was spent in the enclosed submarine environment. It is in the enclosed conditions that exposure to benzene above that encountered in the normal environment is likely to occur. Whilst the submarine is alongside, or running on the surface ventilating fresh air, the exposure is not significantly in excess of the normal background.
…
Atmospheric reports from conventional submarines are not rendered routinely and there are no data available for the periods of time spent by the submariner of the Oberon class of the submarine. In order to estimate benzene levels it was necessary to use the information gathered from the special sea trials performed by the Defence Research Agency and SECU [Submarine Environmental Chemistry Unit].
Using the maximum exposure figures the estimated risk to the submariner exposed to 2.5 ppm over a 13-year working period (32.5 ppm-years) is: 0.4-5.0 additional cases per 1000 submariners.
Assuming that approximately 50% of the 13 years spent on submariners was actually time spent at sea in the enclosed environment the estimated increase in leukaemia cases reduces to:
(a)   For median levels: 0.05-0.5 additional cases per 1000 submariners
(b)   For maximum levels: 0.2-2.5 additional cases per 1000 submariners
The increased risk involved in developing the rare CML is considered to be extremely small.

Noting that the Oberon Report stated that its ‘project appears to be the most wide ranging review of exposures experienced on Oberon class submarines’,[74] the Tribunal also sets out the Oberon Report’s discussion on both benzene and diesel exposure, as follows:[75]
Benzene exposure has been reported in a number of studies. The air concentrations are low (typically less than 0.1 ppm), and on the basis of a “practical” threshold of 16 ppm-years from Australia data in the petroleum industry, it appears that cases of myloid leukemia are unlikely. This conclusion must be tempered by the lack of knowledge of non-inhalational exposure, especially since benzene is a (minor) component of white spirits used to wash down oily surfaces. It is difficult to assess which members of the crew would have had the greatest benzene exposure, although it is tempting to suggest that engine and machine room operators would have had greater exposure, by virtue of diesel exposure, the use of oily rags etc. The available epidemiological evidence, with a relatively short follow-up, for submariners indicates that the SMR [Standard Mortality Ratio] for leukaemia is less than 100, but the extent of the healthy worker effect and influence of medical treatment services is unclear.
Chronic exposure to diesel vapour was a feature of the Oberon class submarine. Marine diesel is a complex mixture with greater than 10% polycyclic aromatic hydrocarbons. There are multiple exposure pathways, and whereas inhalational exposure may be experienced by all crew, engine room crew are exposed to localised fuel aerosol, leaks etc. Anecdotally, diesel was a contaminant of water and was an undesirable characteristic of submariners returning home. Air sampling data for diesel components are difficult to interpret, as volatile organic compounds arise from a number of sources, e.g. cleaning agents. In an Australian review by Gan and Mazurek, it was reported that concentrations of greater than 50 ppm were common in Oberon class submarines. Cancer and neurotoxic risks were calculated, although the International Agency for Research on Cancer has concluded that there is inadequate evidence for human carcinogenicity. The lack of biological monitoring data and the complexity of the exposure pathways, make risk assessment problematic. Nevertheless, there is some evidence that solvent exposed workers may experience long term neurological changes (e.g. "painters syndrome", and visual disturbance), and that certain types of PAH [polynuclear aromatic hydrocarbons] exposure may lead to photosensitivity. Some submariners reported that, on returning home, bed sheets would be stained from skin contact. This is a disturbing remark and suggests that skin is a reservoir for the semi-volatile compounds, and that skin permeation studies should be conducted for diesel exposed submariners.
Diesel exhaust particulate exposure has been linked with cancer, and it is clear that submariners were exposed during snorting. There are some technical difficulties in measurement, and the best available metric (i.e. elemental carbon) has not been sufficiently used to be able to evaluate risk. Once again, engine room crew would be the ones most likely exposed.
[74] Exhibit 1, T6, page 120.
[75] ibid., pages 122-123.
Mr Kerns submitted that Oberon Class submariners were exposed to the submarine environment 24 hours per day and 168 hours per week, as opposed to the 8 hour time weighted average specified in SOP 69 of 2012. This submission equates the entire time Mr Kerns was posted to HMAS Otama and HMAS Onslow as being equivalent to conditions experienced ‘at sea’. However, this proposition is not made out on the available materials. In Mr Kerns’ exposure report, he specified being at sea for up to 8 weeks at a time. He did not specify how often he was at sea and his written submissions noted that he was still subject to non-disclosure orders regarding this service. There was also no objective evidence before the Tribunal regarding the specific amount of time the relevant Oberon Class submarines were at sea. At best, two separate newspaper articles provided to the VRB by Mr Kerns respectively referred to ‘about 20 patrols’ and ‘16 so-called “mystery boat patrols”’ conducted by Oberon Class submarines between 1977 and 1992,[76] noting that Mr Kerns’ relevant period of service was approximately 3.75 years in that timeframe.
[76] Exhibit 1, T21C, page 252; T21D, page 255.
In addition, Mr Kerns relied on a 2005 Australian study by Gan and Mazurek, titled Exposure to Diesel Fuel, which reported that ‘concentrations of greater than 50ppm were common in Oberon class submarines’.[77] However, this figure relates to all volatile organic compounds in recorded diesel emissions, not only benzene.[78] The Oberon Report further stated that:[79]
The paper presents chromatograms from air samples taken on board the Oberon Class submarine and illustrates the difference between liquid and airborne samples. These are later used to estimate to estimate the concentrations of some substances under discussion. Benzene, toluene, xylene, hexane and naphthalene are reviewed individually for their short term (e.g., CNS and polyneuropathy) and long term (carcinogenicity) health effects. Based on the monitoring data (chromatograms) and PID [photoionisation detector] value, risk calculations of getting specific cancer (for the substance) are made following a lifetime exposure (40 years). The calculations are speculative considering the limitation of the data. Also based on the monitoring data, authors concluded that neurotoxic effects ‘are not expected’ but did not rule them out completely as there may be a synergistic effect.
[77] Exhibit 1, T6, page 123.
[78] ibid., page 58.
[79] ibid., page 58.
It was immediately following this discussion that the Oberon Report observed that:[80]
It is obvious from the above papers that there is a lack of published occupational health data on the concentrations of the various pollutants in the Australian submarine environment, specifically for the Oberon Class. The monitoring results cannot be compared with occupational health exposure guidelines as the monitoring does not conform to practices used by occupational hygienists for assessing exposure of persons at work.
[80] ibid.
The Tribunal also notes that in Monograph 45, titled Diesel Fuels, from 1989, the International Agency for Research on Cancer at the World Health Organization relevantly stated that diesel fuels may contain a ‘minor amount of constituents such as…benzene (below 0.02%)’.[81] Additionally, a report on benzene by the National Industrial Chemicals Notification and Assessment Scheme from 2001 stated that ‘Other petroleum products such as…diesel oil…contain no or practically no (<0.02% v/v) benzene’.[82] Furthermore, SOP 189 produced by DVA states that diesel typically ‘contains 0.003 to 0.1% benzene’.[83]
[81] Exhibit 9.
[82] Exhibit 8.
[83] Exhibit 1, T21C, page 248.
In summary, of the three exposure pathways available under SOP 69 of 2012 regarding myeloma, Mr Kerns led no evidence in relation to his contention that he had cutaneous contact with liquids containing benzene greater than 1% by volume; he submitted that diesel fuel or residue may have contained 1% benzene by volume; Mr Kerns did not contend that he ingested liquids containing benzene greater than 1% by volume; and Mr Kerns’ contentions in relation to inhaling benzene vapour required significant inferences to be drawn, which are unsupported by the material before the Tribunal in this proceeding. In relation to benzene content in diesel vapours, the most reliable evidence identified by the Oberon Report pointed to exposure levels much lower than required by SOP 69 of 2012, being contact with liquids containing benzene greater than 1% by volume or inhaling benzene at a concentration exceeding 5 parts per million. For example, while acknowledging the limitations of the data on benzene exposure levels on Oberon Class submarines, the Oberon Report was the best evidence in this proceeding regarding those exposure levels and it stated in relation to benzene that the ‘air concentrations are low (typically less than 0.1 ppm)’.[84]
[84] Exhibit 1, T6, page 122.
In relation to smoking, the Oberon Report stated that smoking was allowed on submarines and that submariners were exposed to air contaminants such as cigarette smoke. However, the references considered by the RMA failed to establish any substantiated link between a primary smoking habit and the development of multiple myeloma. While Mr Kerns’ evidence was that he has never smoked cigarettes, his contention was that he was exposed to benzene from second-hand cigarette smoke during his operational service. The factors in SOP 69 of 2012, as determined by the RMA, are the only pathways for establishing a ‘reasonable hypothesis’ between operational service and the contraction of multiple myeloma. SOP 69 of 2012 does not contain cigarette consumption, or passive or second-hand cigarette smoke exposure factors in relation to myeloma. Accordingly, it must be assumed that the RMA was not satisfied pursuant to subsection 196B(2) of the VEA that there is sound medical-scientific evidence indicating that multiple myeloma can be related to cigarette consumption or exposure to second-hand cigarette smoke during a person’s relevant service. To this end, the RMA has published a comprehensive ‘Reference List’ comprising 51 pages of the names of articles and associated material it had considered as at June 2017 in determining SOP 69 of 2012.[85] This Reference List contains numerous reports which considered whether there is a causal link between cigarette smoke and multiple myeloma. For example, a 1998 article titled ‘Smoking and the risk of leukaemia, lymphoma, and the multiple myeloma’, studied almost 335,000 male construction workers and found no significant association between the risk of developing multiple myeloma and a person’s smoking status, the number of cigarettes smoked or the duration. The authors concluded that the study provides no evidence that smoking has any major relationship to the occurrence of multiple myeloma.[86] Despite Mr Kerns’ submission that he was exposed to benzene by way of second-hand cigarette smoke in the submarine environment, he did not provide any direct evidence regarding the degree of this exposure, and there was only an anecdotal observation from a focus group participant extracted in the Oberon Report regarding the conditions as a result of smoking at sea. In addition, the Tribunal gives minimal weight to the brief written statement from Mr Ray Kemp that ‘at least 75% of an Oberon crew would be smokers and that smoking was allowed in all compartments other than the Control Room’. Mr Kemp was not called to give evidence at the hearing of this proceeding in order for this statement to be tested. Having regard to all the material before the Tribunal, it does not raise the requisite elements under SOP 69 of 2012 to link Mr Kerns’ multiple myeloma with his operational service with the RAN such that the hypothesis can be found to be reasonable.
[85] RMA Reference List for RMA 108-9 as at June 2017.
[86] RMA ID Number 15364: Adami J, Nyren O, Bergstrom R, Ekbom A, et al (1998), Smoking and the risk of leukemia, lymphoma, and the multiple myeloma (Sweden). Cancer Causes & Control, 9(1), pages 49-56.
The Tribunal is not satisfied that the material raises all essential elements prescribed by the definition of ‘exposure to benzene as specified’ by SOP 69 of 2012. The Tribunal therefore finds that Mr Kerns’ hypothesis is not reasonable. The Tribunal is satisfied, based on all the material, that the hypothesis raised by Mr Kerns is not consistent with, or does not fit within, the template in the applicable SOP. That is, SOP 69 of 2012 does not uphold the hypothesis propounded by Mr Kerns. Therefore, the hypothesis is deemed not to be reasonable and necessarily fails.
Accordingly, step three set out in Deledio is not satisfied.
CONCLUSION
It follows from the above reasons that the material before the Tribunal does not raise a reasonable hypothesis connecting Mr Kerns’ multiple myeloma with the circumstances of the particular operational service he rendered with the RAN. As a result, Mr Kerns’ claim is unsuccessful. While the Tribunal’s decision will be a difficult one for Mr Kerns, it neither diminishes the nature of his significant medical condition nor his substantial service with the RAN and for this country. However, based on all the available evidence, the Tribunal is not satisfied that Mr Kerns’ multiple myeloma was ‘war-caused’ as required under the VEA for the Commonwealth to be found liable to pay him compensation by way of a Disability Pension.
DECISION
The decision under review is affirmed pursuant to subsection 43(1)(a) of the AAT Act.

I certify that the preceding 105 (one-hundred and five) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

...........................[sgd].............................................
Associate
Dated: 2 March 2022

106.    Date(s) of hearing:

107.    4 February 2022

108.    Date final submissions received:

109.    30 January 2022

110.    Applicant’s representative:

111.    Mr James Wain, Veterans Support Centre

112.    Solicitor for the Respondent:

113.    Mr Luke Wooley, Sparke Helmore Lawyers

114.

106. Date(s) of hearing:	107. 4 February 2022
108. Date final submissions received:	109. 30 January 2022
110. Applicant’s representative:	111. Mr James Wain, Veterans Support Centre
112. Solicitor for the Respondent:	113. Mr Luke Wooley, Sparke Helmore Lawyers 114.