Newport and Military Rehabilitation and Compensation Commission

[2006] AATA 272

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 272

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2001/849

GENERAL APPEALS DIVISION		)
Re		CLAUDE NEWPORT

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal  Deputy President P E Hack SC

Date 24 March 2006

Place Brisbane

Decision  The Tribunal affirms the decision under review.

..............................................

Deputy President

CATCHWORDS

COMPENSATION – immune deficiency diseases caused by employment with the Commonwealth – rheumatoid arthritis – diabetes – non-Hodgkin’s lymphoma – exposure to ionising radiation

Commonwealth Employees Compensation Act 1930

Compensation (Commonwealth Government Employees) Act 1971 s 30

Safety, Rehabilitation and Compensation Act 1988 s 7(1)

Veterans’ Entitlements Act 1986

REASONS FOR DECISION

24 March 2006   Deputy President P E Hack SC    

1.Mr Claude Newport, the applicant in these proceedings, was born on 5 October 1929. He is now aged 76 years. Mr Newport joined the Royal Australian Navy on 11 January 1947. He rose to the rank of Chief Petty Officer, the rank that he held on discharge on 5 October 1959 on the expiry of his engagement.

2.Between August 1951 and September 1953 Mr Newport served on the HMAS SYDNEY.

3.In October 1952 HMAS SYDNEY (with Mr Newport aboard) was one of a number of naval vessels, both British and Australian, engaged in operation Hurricane. Hurricane was the test of a British nuclear weapon of about 25 kilotons in the Monte Bello Islands of the North West coast of Western Australia.

4.On 15 November 1999 Mr Newport lodged a claim for compensation for ‘immune deficiency diseases ie rheumatoid arthritis – diabetes – non-Hodgkin’s lymphoma’: T7, page 14. In a letter dated 8 November 1999 accompanying his claim (T8, page 16) Mr Newport says that as a consequence of exposure to atomic radiation whilst a crew member of HMAS SYDNEY at the Monte Bello test,

‘my immune system was in some way effected causing me in later years to contract immune deficiency diseases, ie rheumatoid arthritis (aged 45), diabetes (aged 53) non-Hodgkin’s lymphoma (aged 68).’

5.Mr Newport’s claim for compensation was rejected by the Military Compensation and Rehabilitation Service (MCRS) by letter dated 12 August 2000. That decision was affirmed on internal review on 9 May 2001. Thereafter Mr Newport lodged an application in the Tribunal for a review of the decision. The hearing and determination in Mr Newport’s application has been delayed for some years due to his ill health.

6.It is not in issue that Mr Newport suffers from arthritis, diabetes, and non-Hodgkin’s lymphoma. The issues that fall to be decided are whether those diseases were caused by exposure to ionising radiation and whether Mr Newport was, in fact, exposed to ionising radiation.

7.In my view Mr Newport fails on both these issues and accordingly his claim cannot be accepted.

8.I propose to examine first the issue of causation, that is, whether Mr Newport’s diseases were caused by exposure to ionising radiation. I will do so on the assumption that he was so exposed.

9.Mr Dubé of counsel who appeared for the respondent commission accepted, at least implicitly, that the MCRS had considered Mr Newport’s claim in the wrong statutory setting. The MCRS had taken the view that the claim fell to be determined by reference to the provisions of the Commonwealth Employees Compensation Act 1930. Mr Dubé submitted, correctly in my view, that the claim was to be determined by reference to the statute in force at the time of the first diagnosis of each of the three conditions. At the hearing Mr Newport, who was not represented, confirmed that his rheumatoid arthritis was first diagnosed in 1977, the diabetes was first diagnosed in 1987, and non-Hodgkin’s lymphoma was first diagnosed in 1999.

10.Thus Mr Newport’s claim, so far as it relates to rheumatoid arthritis and diabetes, is to be considered by reference to the provision of the Compensation (Commonwealth Government Employees) Act 1971 (the 1971 Act) and the claim in respect of non-Hodgkin’s lymphoma by reference to the Safety, Rehabilitation and Compensation Act 1988 (the 1988 Act).

11.Given that Mr Newport contends that his conditions result from exposure to ionising radiation it is necessary to make reference to the statutory provisions that have the affect of reversing the onus of proof in certain defined circumstances including, relevantly, in the case of diseases caused by ionising radiation. It will suffice for present purposes to examine the provisions in the 1988 Act, those in the 1971 Act being identical in effect, although differently expressed.

12.Section 7(1) of the 1988 Act provides that where an employee is suffering from a disease of a kind specified by the Minister as a disease related to employment of a kind specified in the notice and the employee was, at any time before symptoms first became apparent, engaged by the Commonwealth in employment of that kind, the employment is taken to have contributed in a material degree to the contraction of the disease unless the contrary is established. For the purposes of that subsection the occupational diseases ‘caused by ionising radiation’ have been to been declared to be related to ‘employment involving exposure to the action of ionising radiation.’

13.Thus the first question to be determined, as a matter of fact, is whether arthritis, diabetes, and non-Hodgkin’s lymphoma are diseases caused by ionising radiation. In relation to arthritis and diabetes there is simply no evidence that that is so. The evidence that there is on the subject does not provide any support for the contention advanced by Mr Newport. In that regard the respondent relied upon the report of Dr Alex Cizek. In addition the respondent relied upon the Statements of Principles made for the purposes of the Veterans’ Entitlements Act 1986 as demonstrating current medical thinking on the factors that cause arthritis and diabetes. In my view it is proper to have regard to the Statements of Principles in this way and I propose to do so.

14.Neither of the Statements of Principles in relation to rheumatoid arthritis or diabetes mellitus list exposure to ionising radiation as being a factor in the onset of these diseases.

15.There is otherwise no evidence on the point in relation to these two diseases. Accordingly I am not satisfied that arthritis or diabetes are diseases caused by ionising radiation.

16.In the case of non-Hodgkin’s lymphoma the position is slightly different. I have the benefit of two reports by Dr Robert Lindeman, Mr Newport’s treating haematologist. They are dated 9 March 2001 and 18 June 2001. In the first of them Dr Lindeman takes issue with the statement by Dr Cizek regarding the aetiology of non-Hodgkin’s lymphoma. He says,

‘Although there is evidence that some sub-types of non-Hodgkin’s lymphoma have a viral aetiology, this is certainly not the case for the majority of cases of non-Hodgkin’s lymphoma for which no aetiology has been identified. There is certainly increased incidence of lymphoma in individuals who are immuno-deficient, but to suggest that Mr Newport’s lymphoma has a viral aetiology is, I believe, a statement which cannot be supported.’

17.In his later report Dr Lindeman refers to ‘the well documented link between exposure to radiation and subsequent malignancy’. But this evidence does not, in my view, demonstrate a link in Mr Newport’s case. That is to say, Dr Lindeman does not say that it is likely that Mr Newport’s non-Hodgkin’s lymphoma was caused by exposure to radiation or, indeed, that exposure to radiation was likely to cause non-Hodgkin’s lymphoma.

18.Again it is relevant that the Statement of Principles regarding non-Hodgkin’s lymphoma does not list exposure to radiation as being a factor in the onset of that disease.

19.In addition the respondent relied upon three studies conducted in relation to the health effects of service personnel involved in the United States tests of atomic weapons in 1946 and British tests between 1952 and 1967. Those studies do not demonstrate any likelihood that non-Hodgkin’s lymphoma is caused by exposure to radiation. The findings of the National Radiological Protection Board report entitled Mortality and Cancer Incidence 1952-1998 in UK Participants in the UK Atmospheric Nuclear Weapons Tests and Experimental Programmes was that,

‘… the possibility that test participation caused a small absolute risk of leukaemia other than [chronic lymphatic leukaemia] among men cannot be ruled out; the evidence for any increased risk appears to have been greatest in the early years after the test, but a small risk may have persisted in recent years.’

20.I am not satisfied that non-Hodgkin’s lymphoma is a disease caused by ionising radiation.

21.Given these conclusions Mr Newport does not obtain the benefit of the reversal of onus provisions in s 7(1) of the 1988 Act or s 30 of the 1971 Act.

22.Further, on this evidence I am unable to conclude that the three conditions complained of by Mr Newport were caused by exposure to ionising radiation; there is simply no evidence that establishes that important element in Mr Newport’s case.

23.The next question is whether Mr Newport was, in fact, exposed to ionising radiation. On the view I take of the evidence that assumption is not made out on the evidence.

24.There is no doubt that Mr Newport was aboard HMAS SYDNEY when the atomic bomb was detonated at 0800 on 3 October 1952. Mr Newport says that at the time of the explosion HMAS SYDNEY was 15 to 20 miles south of Monte Bello Islands. He recalls at 0800 the sailors were allowed on the flight deck to observe the explosion and that whilst they turned away from the explosion, just after it he turned around. He says that he can recall a blast of hot air washing violently over him. He is convinced that that hot air contained ionising radiation.

25.In 1984 and 1985 a Royal Commission was conducted into British Nuclear Tests in Australia. The respondent relied upon passages in that report that dealt with operation Hurricane and, as well, upon evidence from the Naval History Directorate of Department of Defence. In that latter regard the Naval History Directorate said, in the letter dated 20 March 2001 to Mr Newport,

‘It is not possible to provide an exact position for HMAS SYDNEY when the atomic bomb was detonated on 3 October 1952. Her log book does not contain sufficient information to construct an accurate track, although her position logged at noon was 20˚47.5’S 114˚33.5’E, well to the south west of the Monte Bello Islands …

…

The report of Proceedings of HMAS MACQUARIE, which was patrolling in company with HAMAS SYDNEY, states that “the Flagship with MACQUARIE astern then steamed a box patrol around approximate position 20˚50’S 114˚24’E for observing the Atom Bomb explosion timed for 0930”.’

26.The Royal Commission examined these matters in some considerable detail. The report at paragraph 5.5.6 concluded that HMAS MACQUARIE and HMAS SYDNEY were on patrol at a distance of more than 100 miles. It also concluded,

‘that no Royal Australian Navy vessel was close enough to the blast to have been in any danger. Nor it seems were any of the ships in the path of the fallout from the blast. The ships were located at the time of the firing so that the personnel on board were not in danger and that any exposure suffered must have occurred during the  recovery and post firing phases of the operation.’

27.Whilst I do not doubt Mr Newport’s sincerity I fear that with the passage of time his recollection has become confused. He spoke, in relation to other events occurring at that time, of the degree of ‘scuttlebutt’ amongst sailors on HMAS SYDNEY. I rather think that the account which Mr Newport gives of feeling the blast of hot air is the product of scuttlebutt exaggerated and embroidered, probably subconsciously, over the years. But the result is that I am not satisfied that Mr Newport’s evidence is accurate, I am however satisfied on the material before me, as the Royal Commission found, that personnel on HMAS SYDNEY were never exposed to ionising radiation.

28.In the result I affirm the decision under review.  

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed:         .....................................................................................
  Leisa Pendle, Associate

Date of Hearing  9 March 2006
Date of Decision   24 March 2006
The Applicant appeared in person     
Counsel for the Respondent     Mr B Dubé
Solicitor for the Respondent     Blake Dawson Waldron