Lynette Seale (Legal Representative for the Late Mr Seale) and Repatriation Commission

[2010] AATA 1047

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 1047

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/5698

VETERANS' APPEALS  DIVISION		)
Re		LYNETTE SEALE (LEGAL REPRESENTATIVE FOR THE LATE MR SEALE)

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr M Denovan, Member

Date22 December 2010

PlaceBrisbane

Decision The Tribunal affirms the decision under review.  

..................[Sgd]............................

Member

CATCHWORDS

VETERAN’S AFFAIRS – Pensions and benefits – Claim for Malignant Neoplasm of the brain – Causation – Alleged exposure to Depleted Uranium - Decision under review affirmed

Veterans’ Entitlement Act 1986 (Cth)

East v Repatriation Commission (1987) 12 ALD 389

Mason v Repatriation Commission [2000] FCA 1409

Repatriation Commission v Bey (1997) 47 ALD 481

Repatriation Commission v Deledio (1998) 83 FCR 82

REASONS FOR DECISION

22 December 2010 Dr M Denovan, Member    

INTRODUCTION

1.      Mr Graeme Seale, the applicant, served in the Australian Regular Army from 24 August 1970 to 23 August 1976 and from 12 November 1985 to 13 November 1999.  For the purposes of the Veterans Entitlements Act 1986 ( the Act),  Mr Seale rendered three periods of eligible defence service, that is from 7 December 1972 to 23 August 1976, from 12 November 1985 to 3 January 1993, and from 16 May 1993 to 13 November 1999.  Mr Seale also rendered eligible operational service from 4 January 1993 to 15 May 1993 in Somalia.

2.      On 22 October 2008, Mr Seale lodged a claim for acceptance of “tumour”. In response to that claim, on 9 April 2009, a delegate of the Repatriation Commission, the respondent, determined that ”Malignant Neoplasm of the Brain” was not caused by war service.

3.      Mr Seale died on 22 April 2009.

4.      The Veterans’ Review Board affirmed the decision of the Repatriation Commission on 28 October 2009.  Mrs Lynette Seale, on behalf of the applicant, lodged an application for review of the decision at the Administrative Appeals Tribunal on 1 December 2009.

ISSUES AND THE LAW

5.      It is not in dispute that Mr Seale suffered from a gemistocytic astrocytoma of the brain.  Mrs Smith, on behalf of the applicant, contends that the condition was a result of exposure to radioactive contaminants during his operational service in Somalia.  There is no contention in relation to the applicant’s defence service.

6.      When considering whether the malignant neoplasm of the brain suffered by the veteran was war-caused, I  must apply the standard of reasonable hypothesis, in this case by identifying the applicable Statement of Principles (“SoP”) and considering whether any hypothesis raised by the material before me conforms with one of the factors in the SoP[1].  If so, then I must consider whether I am satisfied, beyond reasonable doubt, that the condition is not war-caused.  In so doing, I will follow the steps set out in Repatriation Commission v Deledio[2].

[1] SoPs are brought into existence to comply with s 196B of the Act, and provide the statutorily determined relationship to service.

[2] (1998) 83 FCR 82

7.      The SoP relevant to Mr Seale’s matter on the date of his claim is Instrument No 58 of 2008.  The hypothesis advanced on behalf of the applicant is that the veteran’s circumstances satisfy factor 6(c)) of the SoP which provides:

(c)having received a cumulative equivalent dose of 0.05 Sievert of atomic radiation to the brain, where this dose was accumulated at least five years before the clinical onset of malignant neoplasm of the brain;

"cumulative equivalent dose" means the total equivalent dose of radiation from all types of ionising radiation. It accounts for the differences in biological effectiveness of various types of radiation and allows doses from different radiations to be combined. Each component is calculated by multiplying the absorbed dose in a particular tissue or organ for a given type of radiation by the radiation weighting factor for that radiation. The unit of equivalent dose is the Sievert”

8.      It is not in dispute that the clinical onset of malignant neoplasm of the brain was more than five years after Mr Seale’s service in Somalia[3].  The issues that I must decide is whether Mr Seale received a cumulative equivalent dose of 0.05 sievert of radiation to the brain during his service in Somalia, and if so, whether that was the cause of the malignant neoplasm of the brain he later suffered from.

Did Mr Seale develop malignant neoplasm of the brain as a result of receiving a cumulative equivalent dose of radiation to the brain during his service in Somalia?

[3] Dr T Coyne indicates in a pathology report dated 19 November 2007 that the diagnosis was cerebral tumour.

9.      The contention is that during the applicant’s service in Somalia while working in the shared wash area with the United States of America, he was required to sea prep vehicles and stores, and that during this process he would have been exposed to radioactive contaminants that would have been dislodged from American equipment and had fallen onto the ground.  It is contended that this exposure would have been due to wind, vehicle and foot traffic within the area, and that inhalation or ingestion of depleted uranium was a high risk.

10.     It is also contended that when the applicant was visiting the American facilities in Mogdishu, he would have been unaware that he inadvertently walked past containers or entered into store areas that may have been radioactive, and that he may have been sitting, standing, or leaning up against any equipment that could have contained or been contaminated with depleted uranium.

11.     The applicant relied on the evidence of Mr Keith Hodgson, who provided a report and additional material, most of which were pages of material downloaded from the internet.  Mr Hodgson gave oral evidence at the hearing.  He told the Tribunal that Mr Seale’s medical records indicated that he demonstrated signs of uranium exposure soon after he returned to Australia after serving in Somalia.  Mr Hodgson came to this conclusion because there was reference to what he decided was a kidney problem in some of Mr Seale’s medical records.  Mr Hodgson stated that US forces would have had Depleted Uranium (“DU”) munitions when deployed in December 1992, and he assumed these munitions would have been used.  Mr Hodgson gave no credible explanation to justify this assumption of his, and stated that he was not aware of any soil testing for DU in Somalia.

12.     There were major problems with the evidence of Mr Hodgson. Mr Hodgson referred to himself as a research and history officer of the Vietnam Veterans’ Association.  Mr Hodgson has no formal qualifications as a researcher or historian.  He has not served in Somalia.  Mr Hodgson did not know Mr Seale personally; however he had several brief conversations with him during which time he discussed his service in Somalia.  As Mr Hodgson has no relevant personal expertise, the Tribunal can not rely on his conclusions, without reviewing and carefully considering the information that he claims substantiate his beliefs.  The value of his evidence is limited by the accuracy and reliability of the sources upon which he relied upon to draw his conclusions.

13.     Unfortunately neither in oral evidence nor in his report did Mr Hodgson link the evidence he relied upon to his conclusions.  When asked to justify his conclusions with reference to the relevant authorities, Mr Hodgson became flustered, impatient and often incoherent.  He was rarely able to remember exactly which article he had relied upon when drawing his conclusions and the Tribunal was asked to wade through hundreds of pages of downloaded material looking for articles that may have been relied upon by Mr Hodgson.  Without the ability to review question and analyse the source of his information, the Tribunal is unable to accept that Mr Hodgson’s conclusions are reasonable.

14.      Mr Hodgson had not tested the legitimacy of any of his authorities, and had made contact personally with only one of the sources of his information.  None of his sources were made available for the Tribunal to question.  Mr Hodgson was unable to explain to me how he illuminated unreliable reference material.  I concluded that he relied upon anything that he considered was favourable to the applicant.  Further, Mr Hodgson has no medical qualifications, and he did not substantiate his assertions about Mr Seale’s medical records by reference to any qualified authority.  Mr Hodgson did not make the medical records available, and I am not able to accept either his interpretation of those records, or his assertions and conclusions. For these reasons, I found it impossible to accept any of the assertions Mr Hodgson made.  In particular, Mr Hodgson provided no credible evidence that DU was used in Somalia at the time Mr Seale served there.  Even if I could accept that to be the case, no credible evidence was put forward that Mr Seale or anyone else would have been exposed to that DU in the manner and form that Mr Hodgson suggests.  Further, even if Mr Seale was exposed to some dirt or dust-containing DU, no evidence was put forward that pointed to the amount of exposure required to provide a cumulative exposure of the amount required by the SoP.  Mr Hodgson told me that DU inhaled into the lungs could make its way to the brain.  He produced no medical evidence to support his assertion.

15.     The respondent commissioned a Writeway report which was written by COL P J Langford and dated 7 July 2010[4].  In that report, COL Langford concluded that there was no evidence of the late veteran being exposed to DU in Somalia as his unit (B Squadron 3/4 Cavalry Regiment based at 1 RAR Gp) did not operate with American units capable of delivering DU munitions.

[4] Exhibit 5

16.     COL Langford relied on a number of authoritative sources when researching his report.[5]

[5] See page 2 of his report

17.     Dr Gardner was one of COL Langford’s sources.  He has been employed with the Defence Centre for Occupational Health, Department of Defence for the past 10 years.  Dr Gardner said that he was not aware of the use of any depleted uranium weapons in Somalia.  He explained that depleted uranium is contained in armour piecing rounds, and that low level radioactive dust that results from the use of these weapons will not normally penetrate the skin.

18.     COL Robert Breen was another of the sources relied upon by COL Langford.  He is a qualified historian, and travelled to Somalia in April 1993 to interview soldiers and subsequently published a book “A Little Bit of Hope”.  Mr Breen undertook 100 interviews of Australian army ranks from Private to Colonel, and the topic of DU was not raised by any soldier in those interviews.  He did not specifically ask about DU when performing interviews; however he did ask soldiers to express their concerns.

19.     LT COL Cameron Powrie was engaged at the staff HQ from 22 December 1992 to 19 May 1993 in Somalia.  He provided COL Langford assistance in the preparation of his report.  One of his tasks at staff HQ included being health and personal administrator.  He does not recall any briefings prior to, during or subsequent to his posting in Somalia.  LT COL Powrie told the Tribunal that when personnel have been deployed to areas where DU has been used, such as Falklands and Iraq, it is usual for a voluntary screen program to be organised.  In his role as Health Administrator he would have been aware of such a screening program being established in Somalia if one had been.  No DU screening was established, leading him to conclude that no potential exposure to DU occurred in Somalia.

20.     Mr Robinson (WO1 Rtd) was the veteran’s supervisor in Somalia.  Mr Robinson told the Tribunal that Mr Seale was a repair and parts storeman and warehouse manager, and his work involved travelling to Mogadishu to collect stores from the secure wharf and Canadian workshops to collect petrol/oil/lubricants.  Mr Robinson was in charge of the cleaning of vehicles prior to returning to Australia.  They had five days to clean.  The primary concerns in Somalia were chemical hazards in the regiment workshops and biological hazards of goods returned to Australia.  Mr Robinson said that nuclear concerns were not raised and concern regarding nuclear exposure was nil.  Mr Robinson said that the US wash point was 200‑300 metres away from the Australian point, the wharf had been well constructed and there was no possibility that dirty water from the US clean up could have flown over to the Australian point.

21.     In summary, the evidence of those who served in Somalia at the same time as Mr Seale is that there was no known risk of exposure to DU. There is no evidence which points to a connection between Mr Seale’s service in Somalia and his malignant neoplasm of the brain.  At the highest, there is a mere possibility only.

22.     In the Full Federal Court decision in East v Repatriation Commission[6], in which the Court concluded that “a ‘reasonable hypothesis’ requires more than a possibility, not fanciful or unreal, consistent with the known facts”.

[6] (1987) 12 ALD 389

23.     In Repatriation Commission v Bey[7] it was held that:

“… while a hypothesis may be no more than a possibility of supposition, in order for a hypothesis to be reasonable, it must as East states, be pointed to or supported, and not merely left open as a possibility, by the material before the decision-maker.”[8]

[7] (1997) 47 ALD 481

[8] Ibid at 489

24.     The is no evidence which points to there having been any potential exposure to ionising radiation by Australian soldiers in Somalia at the time Mr Seale served there.  Further, even if Mr Seale had been exposed to dirt or dust containing radioactive material, there is no evidence which points to that inhaled radiation causing or being equivalent to or associated with radiation to the brain.

25.     The Act does not permit the Tribunal to find the existence of a causal link of which there is no evidence: Mason v Repatriation Commission[9].

[9] [2000] FCA 1409, per Weinberg J at [75] to [76]

26.     I have therefore come to the conclusion that the hypothesis raised by the material before me is not reasonable.

DECISION

27.      The decision under review is affirmed.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

Signed:.....................[Sgd].........................................................
              Alex Seagar, Research Associate

Date/s of Hearing  7 & 8 October 2010
Date of final submissions         3 November 2010
Date of Decision  22 December 2010
Solicitor for the Applicant          Helena Smith, Advocate
Solicitor for the Respondent     Bruce Williams, departmental advocate