Parker and Repatriation Commission - [2001] AATA 516

DECISION AND REASONS FOR DECISION [2001] AATA 516

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1003

VETERANS' APPEALS DIVISION          )
           Re      Amelia Margaret Parker
  Applicant
           And    Repatriation Commission
  Respondent

DECISION

Tribunal Ms SM Bullock, Senior Member Dr J Campbell, Member

Date12 June 2001
PlaceSydney

Decision The decision under review is affirmed.

..................[sgnd]...................... ....................[sgnd]....................

Ms SM Bullock Dr J Campbell
Senior Member Member
Catchwords
VETERANS' AFFAIRS - Widow's Pension - Eligible War Service - Balance of Probabilities - War-Caused Smoking Habit - Diagnosis - Cause of Death - Primary Site of Cancer - Chronic Airflow Limitation

Legislation
Veterans' Entitlements Act 1986 (Cth) ss 8, 9, 13, 120, 120B

Authorities
Repatriation Commission v Law (1981) 147 CLR 635
Repatriation Commission v Tuite (1993) 39 FCR 540
Doolette v Repatriation Commission (1990) 21 ALD 489
Re Blyth and Repatriation Commission (1982) 4 ALN N147
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Langley v Repatriation Commission (1993) 43 FCR 194
Repatriation Commission v Hunter (1995) 39 ALD 1
Re Withers and Repatriation Commission [2000] AATA 990
Davenport v Repatriation Commission (1995) 39 ALD 560
McGlynn v Repatriation Commission (1980) 1 RPD 210
Briginshaw v Briginshaw (1938) 60 CLR 336

REASONS FOR DECISION

12 June 2001 Ms SM Bullock, Senior Member Dr J Campbell, Member

This is a application for review to the Administrative Appeals Tribunal ("the Tribunal") by Mrs Amelia Margaret Parker of a decision of the Repatriation Commission ("the Commission") dated 12 November 1997 (T2), that the death of her husband, Mr William Thomas Parker, was not war-caused. The Commission's decision was affirmed by the Veterans' Review Board ("the Board") on 10 May 1999 (T14).
A hearing was held before the Tribunal in Sydney on 9 January 2001. The hearing was adjourned part-heard on that day to allow the Applicant and Respondent to submit written submissions which were provided to the Tribunal on 12 March 2001. Mrs Parker provided oral evidence by conference telephone. She was represented by Mr M Vincent of Counsel. Oral evidence was also provided by Mr Parker's younger brother, Mr Ronald Samuel Parker. The Respondent, the Commission, was represented by Mr S Modder, Departmental Advocate. The Tribunal took into evidence documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (" T-Documents", T1-T18) and the following exhibits:
Exhibit Number    Description Date
T1 – T18 Section 37 Statement and Documents. Various
A1      Report of Dr D Quinn, then Medical Oncologist and Clinical Pharmacologist, St Vincent's Hospital, Sydney     13 August 2000
A2      Supplementary report of Dr D Quinn, currently Assistant Professor of Medicine, Division of Medical Oncology, University of Southern California    31 December 2000
A3      Clinical notes from Westmead Hospital Oncology Department          15 October 1996 to 18 May 1997
R1      Clinical Notes of General Practitioner,  Dr N Chowdhury         Various
R2      Report of Dr K Tiver, Deputy Directory of Westmead and Nepean Hospitals, Joint Radiation Oncology Centre     6 November 2000
R3      Supplementary Report of Dr K Tiver, Deputy Directory of Westmead and Nepean Hospitals, Joint Radiation Oncology Centre 8 January 2001
Issues
The issues to be determined in this matter are:
(a)What was the primary site of Mr Parker's cancer?
(b)Did Mr Parker have a service-related smoking habit?
(c)What was the cause of Mr Parker's death?
(d)Was Mr Parker's death related to service?

Service

Mr Parker served in the Australian Army from 14 October 1940 to 31 October 1945 (T3, pp 6, 10). Mr Parker has eligible war-service as defined in the Act. Mr Parker served with Z Special Force and served on Thursday Island from 5 February 1944 to 26 January 1945. This service did not qualify as operational service.
Legislation
A determination in this matter requires consideration of the provisions of the Veterans' Entitlements Act 1986 ("the Act"). Section 8 of the Act deals with war-caused death and as relevant, provides:
"8 War-caused death
(1)Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if:
(a) the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c) the death of 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) in the opinion of the Commission, the death of the veteran was due to an accident that would not have occurred, or 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; or
(e) the injury or disease from which the veteran died:
(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; or
(f) the injury or disease from which the veteran died is an injury or disease that has been determined in accordance with section 9 to have been a war-caused injury or a war-caused disease, as the case may be;
Note:The effect of paragraph (f) is that, if the veteran has died from an injury or disease that has already been determined by the Commission to be war-caused, the death is to be taken to have been war-caused. Accordingly the Commission is not required to relate the death to eligible war service rendered by the veteran and sections 120A and 120B do not apply.
but not otherwise.
…"
As relevant, section 9 of the Act deals with war-caused injuries of diseases and provides:
"9 War-caused injuries or diseases
(1) Subject to this section, 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;
…"
Section 13 of the Act deals with eligibility for pension and as relevant states:
"13      Eligibility for pension
(1)      Where:
(a)      the death of a veteran was war-caused; or
(b) a veteran has become incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c) in the case of the death of the veteran--pensions by way of compensation to the dependants of the veteran; or
(d) in the case of the incapacity of the veteran--pension by way of compensation to the veteran;
in accordance with this Act.
…"
As Mr Parker served in the Australian Army during World War II and his service was eligible war-service but non-operational service, the relevant standard of proof is contained within subsection 120(4) of the Act which states:
"120 Standard of proof
…
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
…"
The Tribunal is also required to apply section 120B of the Act, in that the Tribunal is required to decide this matter to its reasonable satisfaction in accordance with any Statements of Principles issued by the Repatriation Medical Authority ("RMA") or any relevant determinations or declarations under the Act. Statements of Principles set out various factors, one of which, as a minimum, must exist in order to establish causation between, in this case, Mr Parker's death and his service.
Because there are issues which are required to be determined by the Tribunal in relation to the cause of Mr Parker's death, a number of Statements of Principles may be relevant. These Statements of Principles are:
(a)Statement of Principles concerning Chronic Bronchitis and Emphysema, Instrument Number 74 of 1997;
(b)Statement of Principles concerning Malignant Neoplasm of the Lung, Instrument Number 30 of 1996 as amended by 150 of 1996;
(c)Statement of Principles concerning Malignant Neoplasm of the Testis and Paratesticular Tissues, Instrument Number 4 of 1997.
Depending on the Tribunal's determination as to the cause of death, there may be no Statement of Principles in force and the Tribunal, in those circumstances, will have to decide this matter on the balance of probabilities.
Background
The information contained within this section is provided by way of background and the facts contained within are not disputed.

Mr and Mrs Parker married on 8 May 1959. Mr Parker had been previously married and divorced (T6). Mrs Parker was aged approximately 39 years at the time of her marriage and Mr Parker was aged 40 years.
Mr Parker was a carpenter by training. His employment history included working firstly when he was 15 or 16 years old for Neon Lights. He later worked for approximately 40 years at the Royal National Parks Trust workshop at Audley.
Mr Parker retired 12 months after the usual retirement age, when he was approximately 66 years old.
In September 1996, Mr Parker was diagnosed at Westmead Hospital as having "carcinoma of the testicle" (T4, p18).
On 31 October 1996, Mr Parker underwent a resection of an ulcerating tumour in his right groin. Dr K Tiver, then Staff Specialist, in the Division of Radiation Oncology at Westmead Hospital, noted on 6 February 1997 that the tumour proved to be a "..skin adnexal carcinoma, probably of sweat gland origin with extensive local lymph note involvement extending to the surgical margin at one point" (T8, p36).
On 11 May 1997, Mr Parker was admitted to Blacktown Hospital with a principle diagnosis on the "Patient Admission Form" of "CA lung – end stage" (T8, p33). His admission to hospital was requested by General Practitioner, Dr Chowdhury, because amongst other problems, Mr Parker had become confused (T8, p33).
On 5 June 1997, Mr Parker died in Blacktown Hospital (T7). Mr Parker was 77 years old. The "Medical Certificate of Cause of Death" listed the causes of death as:
"CAUSE OF DEATH  Approximate interval between onset and death
(a)       Cardiorespiratory failure  2 weeks
(b)       Metastatic lung cancer from testicle CA       8 month (sic)
(c)       …………………………………………..         ………………"
(T8, p30)
Mr Parker had no conditions accepted as war-caused for the purposes of the Act. He was not therefore in receipt of a Disability Pension.
Mrs Parker lodged a claim for Widow's Pension on 29 August 1997, stating:
"…my husband's death was associated with his smoking habit which I believe began after enlistment and continued thereafter until 1996 when he ceased smoking because of ill health.
Refer SOP 30 of 1996 [Statement of Principles concerning Malignant Neoplasm of the Lung]" (T4, p19)
On 12 November 1997, the Commission decided that the death of Mr Parker was not related to service. The Commission found that the cause of death was from "disseminated lung lesions which metastasised from a carcinoma of the sweat gland of the groin" (T2, p4). This type of tumour, which the Commission referred to as an "adenosquamous carcinoma" was noted also by the Commission to be "unusual". The Commission stated that there was no relationship between this tumour and smoking and therefore there was no relationship through smoking to Mr Parker's death.
On 3 February 1998, Mrs Parker lodged an application for review to the Board (T11). In reaching its decision on 10 May 1999, the Board considered the opinion of D H Bashir, Departmental Medical Officer, who had expressed the view that Mr Parker:
"…appears to have died from disseminated lung lesions – primary from a cancer of sweat gland origin in the groin – termed adenosquamous carcinoma. This is an unusual tumour. The etiology is unknown and there is no relationship to stress, to smoking or to any other condition of service" (T14, p97).

The Board also considered the opinion of Dr D Quinn, Medical Oncologist and Clinical Pharmacologist at St Vincent's Hospital, who opined on 28 September 1998 (T13) that:
"…I believe that the best explanation is that Mr Parker had a primary cancer of adenosquamous type derived either from the skin of the scrotum or a site elsewhere in the body and that he developed Paget's Disease of the skin as a result of this cancer. The commonest primary site of adenosquamous cancer in males is the lung, where adenosquamous carcinomas are described as being aggressive and metastasising widely
….
In summary, I feel that Mr Parker had diagnoses of:
1Extramammary Paget's Disease of the scrotum as an paraneoplastic manifestation of his metastatic adenosquamous cancer.
2Adenosquamous carcinoma involving the scrotal skin and inguinal and pelvic lymph nodes either as a primary scrotal cancer or metastatic from another site, of which the lung would be the most common." (T13, pp 89, 90; T14, p97)

The Board concluded that Dr Quinn did not necessarily disagree with Dr Bashir's opinion and in such circumstances it was hard for the Board to accept that Mr Parker's cancer originated in his lung. Accordingly, on the balance of probabilities, the Board was unable to find that Mr Parker's cancer originated in his lung. In those circumstances, the Commission's decision was affirmed and the Board stated it did not need to consider if Mr Parker's smoking habit was service-related.

On 6 July 1999, Mrs Parker lodged an application for review to the Tribunal (T1).

Evidence of Mrs Parker

Mrs Parker told the Tribunal that she had known her husband for 12 months before they married. At that time, Mr Parker was smoking "roll-your-own" cigarettes. Mrs Parker told the Tribunal that early in their relationship, Mr Parker had told her that he commenced smoking when he joined the Army. Mrs Parker stated that she believed this was true because Mr Parker came from a very prim and proper family, which was of the "old school tie" type. Mrs Parker stated that she did not believe her husband would have smoked before service because he was living at home with his parents and would not have attempted to smoke.
Mrs Parker explained to the Tribunal that as she understood it, Mr Parker's family was very close and he was particularly close to his only other sibling, younger brother, Ronald Samuel Parker. She and her husband used to regularly stay with Mr R Parker. Since her husband's death, Mrs Parker herself has maintained contact with Mr Ronald Parker. She talks with Mr R Parker and his wife each Christmas and she has been invited up to stay with her brother-in-law, but has not been able to do this because of her own poor health.
Mrs Parker was referred to a Smoking Questionnaire which she identified she had signed on 26 August 1997 (T5). Mrs Parker stated in the Questionnaire and also confirmed this at hearing, that she believed Mr Parker commenced smoking because of peer pressure, stress and boredom of service and the availability of cigarette and tobacco which were provided as rations to servicemen. Mrs Parker acknowledged that it was very difficult for her to estimate the quantity of cigarettes or tobacco her husband consumed during his service and she had not been able to estimate this. After service, from 1945 until 1957, again, as Mrs Parker did not know her husband, she was unable to estimate the quantity of cigarette or tobacco consumption. From 1957, when Mrs Parker met her husband until 1996, Mrs Parker explained that her husband continued to smoke and she estimated that the level of consumption was between 15 to 20 cigarettes per day, which he rolled himself. Mrs Parker acknowledged that this estimate was a guess and based on her knowledge and observation of her husband at home and when they went out socially. Mrs Parker told the Tribunal that her husband had a tobacco pouch, which went everywhere with him. She informed the Tribunal of occasions when he had forgotten his pouch and would have to return home to get it. When they were out socially, Mrs Parker observed that her husband seemed rarely to have a cigarette out of his hand. Further, Mrs Parker noted that her husband had a spare tobacco pouch.
After his retirement, Mr Parker spent a lot of time in the garage, where he undertook woodwork, making various pieces of furniture or wood items for other people. Mrs Parker believed that her husband smoked frequently in the garage, although she noted that he had to be careful because of the type of wood working machinery he used to make his various wood pieces. Mrs Parker stated that her husband would buy his own tobacco, but she always had to buy him the cigarette papers when she did the shopping.
Mrs Parker told the Tribunal that her husband ceased smoking in 1996 because of his ill health. This was at the time of the diagnosis of a growth in his right groin and his subsequent admission to Westmead Hospital.
Mrs Parker was asked about a notation in Mr Parker's clinical notes from Westmead Hospital, which recorded:
"…Smokes 10 cigarettes per day since the age of 15. Consumes 30-40 gms alcohol per day." (Exhibit A3)
Mrs Parker told the Tribunal that she just did not believe this statement could be true. It did not accord with what Mr Parker had told her early in their relationship. At the time this notation was made on Mr Parker's 1996 admission to Westmead Hospital, Mrs Parker explained that her husband was in a "shocking condition" and that he was confused, extremely ill and did not know what he was saying. Mrs Parker postulated that her husband would have virtually said anything at that time with no real understanding of what he was saying. While Mrs Parker acknowledged that she did not know Mr Parker prior to his Army service, the statement that he was smoking from age 15 years simply did not accord with her understanding of the facts. Mrs Parker stated that she did not know, however, when her husband left his parents' home.
While Mrs Parker did not like her husband smoking, she did not tell him to stop. Similarly, in relation to Mr Parker working in the garage, which Mrs Parker described as "his paradise", while she noted the great mess in it, she did not go in and therefore could not accurately estimate her husband's level of smoking. Mrs Parker noted that she herself had started smoking when she first met Mr Parker, but had given smoking up because she did not particularly like it.

The Tribunal was informed by Mrs Parker that her husband was often "huffy and puffy". By "huffy and puffy", Mrs Parker meant that her husband was often short of breath. Initially , Mrs Parker believed this was because he was working too hard. As time went on, Mrs Parker stated that she noticed his condition much more, particularly after Mr Parker had retired. He did not take any medication for this condition. She did not recall any particular cough and Mr Parker did not take any medication for this condition, to her knowledge. Mrs Parker explained, however, that her husband was very reluctant to consult doctors for any condition, preferring to try and deal with any health issues himself.
Before the discovery in 1996 of the lump in Mr Parker's groin, Mrs Parker recalled that her husband did not have much illness, apart from a number of colds in winter. He was not "a complainer". He would use cough medicine, which would last "the standard time". Mr Parker did not undertake much activity after retirement and in fact he would drive up the street to the local corner shop, a distance of 100 yards. Mrs Parker stated that she often asked her husband why he drove such a short distance to the shop. His reply to her was that the car was there so he would use it.
Evidence of Mr Ronald Samuel Parker
Mr R Parker provided a Statutory Declaration to the Board dated 14 December 1998, in which he noted that he was the younger brother of Mr William Thomas Parker. In his Statutory Declaration, Mr R Parker noted that he and his brother were born in Rozelle but the family moved on a number of occasions, notably to Croydon in 1931; to Wentworthville in approximately 1933; and finally to Hurstville in 1937 where the boys lived until their enlistment. Mr R Parker noted that prior to his own enlistment, he had never seen his brother smoke. He believed that his brother was posted to Thursday Island with Z Force, where he assisted to maintain a defensive post (T15).
Mr R Parker stated that he and his brother were very close and shared the same bedroom. He stated that he never saw his brother smoke or even sneak the occasional cigarette. Mr Parker acknowledged that as the younger brother, it was possible that his older brother did not confide in him. However, Mr R Parker noted that the boys had gone out to the movies together and attended other social occasions together and his elder brother never smoked. Mr R Parker described his parents as being quite strict. The boys attended the Methodist Church and Fellowship group, although they were Anglicans. Mr R Parker recalled that their upbringing was strict but fair.
Mr R Parker informed the Tribunal that he and Mr Parker attended the same school but were, of course, in different years. Mr R Parker noted that he never saw his brother smoking with the other boys in the toilets or at the back of the school, which was a favourite haunt for young smokers. Mr R Parker acknowledged that prior to enlistment, he was away from home on a number of occasions and obviously was not able to comment on what happened during that time in relation to his elder brother smoking or not smoking. Further, Mr R Parker noted that Mr Parker commenced full-time work aged approximately 15 or 16, working at Neon Lights. Mr R Parker was unable to provide any information as to whether or not Mr Parker smoked at work. Again, after Mr Parker had commenced work, the boys went out socially together, including the movies, and Mr R Parker observed that his older brother did not smoke.
Mr R Parker noted that prior to enlistment, the family would always eat together and there was never any indication of Mr Parker smoking. Further, before Mr Parker worked, the boys did not receive any pocket money so it was unlikely that Mr Parker could have afforded cigarettes. After he commenced work at Neon Lights, Mr R Parker could not state what his brother earned, but did not think that this was very much.
On enlistment, Mr R Parker and Mr Parker undertook training together at La Perouse. It was then that Mr R Parker noticed his older brother smoking. Servicemen at that time, including the Parker brothers, received packages from the Salvation Army and the Red Cross which contained, amongst other things, tobacco/cigarette rations. It was acceptable to smoke and indeed, Mr R Parker noted that it was considered "the manly thing to do". There was none of the current stigma or health concerns attached to smoking cigarettes at that time, Mr R Parker noted.
Mr R Parker commenced smoking when he was hospitalised after an accident at Wagga. He and Mr Parker would then meet up on leave and at that time, they would both smoke. During their service, the brothers would meet once or twice per year and Mr Parker mostly smoked "roll-your-own" cigarettes and on a occasion, tailor made cigarettes. It was not until Mr Parker was 22 or 23 years, that Mr R Parker could recall seeing his brother smoke in front of their parents. His parents did not mind as their father also smoked, Mr R Parker noted.
The level of Mr Parker's smoking became most evident in 1977, after Mr Parker had had a car accident. Earlier, between 1950 to 1970, Mr Parker would see his brother every few weeks. In the 1970s Mr R Parker moved to Port Macquarie where he has lived for the past 30 years. After the relocation to Port Macquarie, the brothers saw each other two or three times per year, usually at Christmas and at various other times when Mr and Mrs Parker would come for a holiday. On these later occasions, Mr R Parker observed that his brother was always smoking.
Mr R Parker recalled that his brother had a constant irritating cough and he himself had told Mr Parker to stop smoking as it was injuring his health. Mr Parker became very angry with people telling him that he smoked too much. Mr R Parker stated that he was worried about his brother, not only his irritable cough, but also he had noticed Mr Parker's shortness of breath. His brother could not walk the short distance to the corner shop because of his shortness of breath. Mr Parker would drive to the corner shop. This pattern of behaviour, Mr R Parker observed, was occurring during the 1980s and 1990s.
Medical Evidence
Dr D Quinn, Medical Oncologist and Clinical Pharmacologist, St Vincent's Hospital, Sydney and later, Assistant Professor of Medicine, Division of Medical Oncology, University of Southern California
Assistant Professor Quinn provided a medical opinion dated 28 September 1998 (T13), which was available to the Board and which has already been detailed previously in this decision. In addition, Assistant Professor Quinn provided two further reports, one dated 13 August 2000 (Exhibit A1) and a supplementary report of 31 December 2000 (Exhibit A2).
Assistant Professor Quinn had been asked by Mrs Parker's solicitor to provide an opinion as to whether, on the balance of probabilities, the primary site of Mr Parker's cancer was in the lung or another site and in the alternative, whether the primary site of Mr Parker's cancer was in the sweat glands. Assistant Professor Quinn noted that several factors compelled him to believe that Mr Parker's death was due to "a primary squamous carcinoma of the lung with adenomatous differentiation and skin metastasis rather than a primary adenosquamous carcinoma of the skin of the scrotum or inguinal region" (Exhibit A1).
Assistant Professor Quinn noted that carcinoma of the lung is far more common than the rare tumour of the skin at an unusual site. Further, Assistant Professor Quinn believed that lung cancer is a more common cause of Extramammary Paget's Disease than primary skin cancer. Specifically in relation to Mr Parker, Assistant Professor Quinn noted that Mr Parker was exposed to a carcinogenic level of tobacco for lung cancer, but apparently not to recognised carcinogens for primary scrotal cancers, such as pitch, tar, oil or chimney soot. While Assistant Professor Quinn noted that Mr Parker presented with symptoms distant from his lung, this is not unusual to occur in lung cancer. Assistant Professor Quinn noted that within a couple of weeks of the diagnosis and treatment of the growth in the inguinal region, where cancer first produced symptoms, Mr Parker also had symptoms related to the right side of his thoracic cavity with the rapid development of a mass lesion there. A right pleural effusion was noted on a chest radiograph performed on 2 January 1997. Assistant Professor Quinn stated that it was not possible to conclude whether Mr Parker had radiological evidence of a neoplasm in the lung at the time of the original treatment for his groin condition, because, Assistant Professor Quinn noted, Mr Parker did not have a CT scan of the thorax. Even if Mr Parker had a CT scan, Assistant Professor Quinn noted that given the subsequent history of the mass lesion in the inferior part of the right lung with associated pleural effusion, it was possible that a radiograph would not detect a sizeable lung primary in the right middle or lower lobe bronchi. A post-mortem examination was not undertaken and accordingly, there was no further evidence about the likely primary source and pattern of distribution of metastases. On the pre-mortem clinical evidence available, Assistant Professor Quinn noted that Mr Parker developed bone metastases at several sites as noted in a bone scan from Westmead Hospital on 8 January 1997. It was opined by Assistant Professor Quinn that aggressive cutaneous malignancies rarely metastasised to bone, whereas metastases to bone are common in the progressive course of lung cancer.
Assistant Professor Quinn noted that a large single mass in the lung as described in several of Mr Parker's chest radiograph reports, favours a conclusion of a primary lung cancer over metastases to the lung. In this regard, Assistant Professor Quinn noted that with metastases to the lung from another site, one would expect to find multiple bilateral lesions on the chest radiograph, rather than an asymmetrical involvement of one hemi thorax with no involvement of the other, as was the case with Mr Parker. The presence of a large solitary pulmonary metastasis from a distant squamous carcinoma from which multiple other metastases are thought to have derived would be most unusual, Assistant Professor Quinn opined. Assistant Professor Quinn further noted that a whole body Positron Emission Tomographic ("PET") scan performed on 29 April 1997, demonstrated diffuse areas of malignant disease, including in the right lung, multiple bones, soft tissue and the lymph nodes of the axillae and neck. Such a pattern, Assistant Professor Quinn further concluded, is consistent with late stage primary lung cancer with metastases.
Assistant Professor Quinn stated that no one could say on an "100%" basis, that Mr Parker had either lung cancer with skin and lymph node metastases, or scrotal cancer with diffuse metastases. Assistant Professor Quinn noted that he had had discussions with a number of colleagues specialising in dermatology, oncology and pathology and had undertaken some research of the medical literature. The consensus of views, Assistant Professor Quinn reported, favoured primary lung cancer. Assistant Professor Quinn opined:
"…My personal feeling would be 60-70% chance of lung cancer, 30-40% chance of primary scrotal cancer. If 50 % is a cut off for probabilities then the balance of probabilities is of a lung cancer diagnosis in this case." (Exhibit A1, p3)
Assistant Professor Quinn disagreed with the factors recorded on the Death Certificate, noting that on his reckoning, the description of death from metastatic lung cancer from testicular cancer was palpably incorrect and as such it underlined for Assistant Professor Quinn, the lack of utility of Death Certificates in determining cause of death. Further, Assistant Professor Quinn also disagreed with the cause of death being designated as "cardio-respiratory failure". Assistant Professor Quinn opined that Mr Parker died from the "cancer burden within his right lung, which induced shunting of blood through his lungs and progressive hypoxia". This was affirmed by nursing observations of progressive hypoxia on supplementary oxygen in the days before his death. Further, Assistant Professor Quinn was critical of Dr Bashir, noting he was unsure of Dr Bashir's training and experience in oncology, dermatology or forensic pathology. Assistant Professor Quinn concluded that Mr Parker did not have testicular tumour, because such tumours have a characteristic physiological pattern not described in this case.
Given his opinions, Assistant Professor Quinn concluded that Mr Parker's circumstances are best considered under the Statement of Principles concerning Malignant Neoplasm of the Lungs, which had an ICD code of 162. Dr Quin noted that tobacco abuse is the major risk factor for lung cancer. Given that Mr Parker smoked at least 10 cigarettes and perhaps 15 to 20 cigarettes per day for approximately 50 years, then the risk of lung cancer was approximately 30 to 50 times that of a non-smoker of similar age.
In his second report, dated 31 December 2000, Assistant Professor Quinn noted that he had received a copy of Dr Tiver's report of 6 November 2000. Assistant Professor Quinn noted that Dr Tiver had had the opportunity to review the clinical notes and investigations undertaken in Mr Parker's case. However, Assistant Professor Quinn noted that most of the data still remained inconclusive with regard to the site of the primary tumour. For example, Assistant Professor Quinn noted that the thoracic CT scan performed on 9 January 1997 was inconclusive, noting the presence of collapse which would obscure a mass lesion. The PET scan review was also equivocal in terms of determining whether the primary tumour was of lung or other origin.
Assistant Professor Quinn agreed with Dr Tiver's statement that:
"In the absence of a post-mortem examination there will never be absolute certainty about diagnosis". (Exhibit A2, p2)

Assistant Professor Quinn did not, however, agree with Dr Tiver's conclusion that on the balance of probabilities, the primary tumour was a primary carcinoma of the skin appendage (sweat gland carcinoma), with its origin arising in the groin. Assistant Professor Quinn maintained his belief that the primary malignancy was lung cancer.

Assistant Professor Quinn supported his view that lung cancer is the commonest cause of cutaneous metastases, by noting that Mr Parker had an aggressive cancer and three months after his report of the cutaneous lesion, he had a large malignant ulcer in his groin with regional lymph node involvement and extranodal extension. Less than a year after the first report of the cutaneous lesion, Mr Parker had died. Assistant Professor Quinn opined that the clinical description of Mr Parker's demise was consistent with death from pulmonary failure that was multifactorial in basis, including contributions from chronic obstructive lung disease, infection and the intrathoracic component of the malignancy under discussion. Compared to this picture, Assistant Professor Quinn noted that the natural history of sweat gland carcinoma is that it is a rare tumour that may cause lymph node metastases, but rarely produces distant metastases and/or death. Referring to the medical literature, Assistant Professor Quinn noted that in patients dying from metastatic sweat gland carcinoma, the death occurred several years after the initial diagnosis. On the other hand, the natural history of lung cancer is that it is very common in smokers and much more clinically aggressive than sweat gland carcinoma, with the majority of patients dying from lung cancer within five years of diagnosis. Dying within a year of diagnosis is common, Assistant Professor Quinn noted. Assistant Professor Quinn reiterated that lung cancer does not uncommonly present with distant metastases, including cutaneous involvement. Making a decision about Mr Parker's case involves a choice between a rare tumour of the skin behaving in an aggressive manner, which is at variance with published experience of its natural history, and a common cancer, lung cancer, producing an unusual but described presenting manifestation and progressing with what seems to be the familiar aggressive clinical course for lung cancer.
In relation to Dr Tiver's criticism of Assistant Professor Quinn in confusing scrotal carcinoma with Extramammary Paget's Disease, Assistant Professor Quinn noted that a number of sites could have given rise to metastases. Squamous cell carcinoma of the scrotum and the sweat gland tumours, with or without associated Paget's Disease, are very rare diagnoses, whereas the commonest visceral cancer in a man of Mr Parker's age and history of tobacco use with adenosquamous differentiation, is lung cancer.
Assistant Professor Quinn did not agree with Dr Tiver's key point that Extramammary Paget's Disease does not have to arise directly from cancer lying subjacent to the skin, as is the case for Paget's Disease of the breast. Rather, Assistant Professor Quinn's view is that Extramammary Paget's Disease arises in response to cancer that may be local or distant, diagnosed or undiagnosed. Referring to his experience of patients dying in hospices with advanced cancer, Assistant Professor Quinn noted that it is not unusual for them to have rashes in the groin, armpits, around the anus, behind the ears or in their eyelids. Accordingly, Assistant Professor Quinn concluded that Dr Tiver's statement that Extramammary Paget's Disease is "not a manifestation of cancer which spreads to the skin via the bloodstream" appeared to Assistant Professor Quinn to not be evidence-based, although he noted that medical literature evidence to refute this is also lacking.
Assistant Professor Quinn conceded that the PET scan distribution of metastases was consistent with late stage metastases from a number of primary sites. However, considering the PET scan in the region of the right lung yielded an appearance "consistent with either primary or secondary cancer", Assistant Professor Quinn opined that if oncologists were confronted with a PET scan with the described distribution of cancer, most would place lung cancer high, if not first on the list of differential diagnoses.
Dr K W Tiver, Deputy Director, Joint Radiation Oncology Centre, Westmead and Nepean Hospitals
Dr Tiver provided two reports dated 6 November 2000 (Exhibit R2) and 8 January 2001 (Exhibit R3).
Dr Tiver noted that he was involved with several of his colleagues in Mr Parker's management at Westmead Hospital, between October 1996 and May 1997. The group's working diagnosis was a primary carcinoma of the skin appendage origin arising in the perineum, which showed rapid metastatic dissemination after a palliative surgical resection of the primary tumour in October 1996. Dr Tiver concluded that having reviewed the available records, on the balance of probabilities the correct diagnosis to be preferred was primary carcinoma of the skin appendage origin arising in the perineum with rapid metastatic dissemination, over the alternate diagnosis of metastatic carcinoma from an unknown primary site, including but not restricted to lung and presenting with a metastasis in the perineum. Dr Tiver noted that in the absence of a post-mortem examination, there would never be absolute certainty about the diagnosis.
Dr Tiver provided a number of reasons for his view. He noted that the size and clinical appearance of the tumour in Mr Parker's groin was quite large. While noting that it is not uncommon for a number of primary sites to present clinically with metastases while the primary site is still small and asymptomatic, as could have been the case with a primary in Mr Parker's lung, it is relatively unlikely, Dr Tiver opined, that lung cancer would remain so small as to be invisible on a plain chest X-ray, while giving rise to such a massive metastasis in the groin. Further, while it was again possible for metastases to the skin to ulcerate and fungate as was the case with Mr Parker, it is not common and an ulcerating, fungating mass of the size of Mr Parker's tumour in the groin was more likely to be the primary growth to the skin rather than a secondary one.

Dr Tiver further considered that the histopathology in this case is more consistent with a primary adenocarcinoma of the skin appendage origin, showing areas of squamous differentiation. This was particularly so given the presence of Extramammary Paget's Disease. In reaching this conclusion, Dr Tiver had conferred on this matter with Dr Bilous, Head of Histopathology at the Institute of Clinical Pathology and Medical Research at Westmead Hospital. Dr Bilous had also reported at the relevant time, on the specimen from the excision of Mr Parker's groin mass. To Dr Tiver's knowledge, this entity will almost always occur in association with primary adenocarcinomas of the skin appendage origin. Dr Tiver opined that it was rare that an adenocarcinoma arising in some other organ which opens directly onto the skin can infiltrate directly into the adjacent skin as Paget's Disease, for example, from the rectum or urethra. If Extramammary Paget's Disease ever occurs in association with metastases to the skin, it must be rare, Dr Tiver opined. Further, in relation to the histopathology, the presence of lymph node metastases was much more consistent with the groin being the primary site, with secondary spread to regional lymph nodes. Dr Tiver noted that blood-borne metastases can "on-seed" cancer to the lymph nodes draining the site of the metastases, but this is clinically uncommon.
Dr Tiver noted that skin appendage carcinomas are uncommon but not rare and occur most frequently in areas of the skin with high density appendiceal glands.
After resection of Mr Parker's groin mass in October 1996, he was asymptomatic until early January 1997, when he developed pain which was found to arise out of bone metastases in the left pelvis. Investigations at that time showed malignant involvement in the right hemi thorax, the spleen and several other bones. After some delay, a whole body PET scan was obtained and it was revealed that Mr Parker had widespread cancer involving multiple bones, soft tissues of the back, axillae and neck, the right hemi thorax and possibly the peritoneum.
Dr Tiver noted that, of great significance in this matter, was whether the pattern of malignant involvement of the right hemi thorax was seen on plain chest X-rays, CT scans and the PET scan. Prior to Mr Parker's operation in October 1996, plain chest X-rays were reported normal. In January 1997, Dr Tiver noted that radiography films showed a right pleural effusion. Further, the CT scan of the chest undertaken on 9 January 1997, was taken three days after there was an attempt at right pleural aspiration, which then had resulted in significant pneumothorax and a collapse of the underlying right lung. This set of circumstances created some difficulty in interpreting the radiological images. The scan reported areas of consolidation in the right lower lobe and the suggestion of a rounded mass-like opacity in the collapsed portion of the right mid lung. In relation to these findings, Dr Tiver obtained an opinion from Dr A Peduto, a staff Radiologist at Westmead Hospital. The consensus opinion was that there was a single, one centimetre non-specific nodule in the right lung at a peripheral location. If this nodule was malignant, Dr Tiver noted that it could be either primary or secondary. His preferred opinion was that in the overall clinical context, a small metastasis (secondary) was more likely. The second abnormality noted in the report was a normal vascular structure, Dr Tiver noted.
Dr Tiver then obtained further opinion from Dr G Larcos, Director of Nuclear Medicine at Westmead Hospital in relation to the PET scan. These pictures showed a diffuse malignant involvement of the right pleura and a mass posteriorly in the right lower lung, probably with a necrotic centre. Again, Dr Tiver opined that this appearance would be consistent with either a primary or secondary cancer.
Dr Tiver concluded that the cause of Mr Parker's death was directly attributable to the burden of widely disseminated carcinoma, probably of skin appendage origin. Further, Dr Tiver concluded that there was no suggestion that this malignancy arose from the testis or paratesticular tissues as defined in the Statements of Principles. On balance, Dr Tiver also did not favour the malignancy arising from the bronchus, trachea or lung tissues.
Noting Mr Parker's smoking history as recorded at Westmead Hospital, that Mr Parker smoked 10 cigarettes per day since the age of 15, Dr Tiver opined that the smoking habit appears to have been well established before he entered the Army.
If it was accepted that the diagnosis of death was from carcinoma of the skin appendage origin, then there are no known causal factors to which this condition could be attributed, Dr Tiver noted.
Dr Tiver did not agree with several points in Assistant Professor Quinn's reports, noting that he appeared to confuse adenocarcinoma of the skin appendage origin arising in the perineum, with primary squamous cell carcinoma of the scrotum. Dr Tiver also did not agree with Assistant Professor Quinn's statement that lung cancer is a more common cause of Extramammary Paget's Disease than primary skin cancer. Dr Tiver's key point is that Paget's Disease represents direct spread to the skin from an adenocarcinoma arising in an organ which lies immediately subjacent to the skin and which opens onto the skin. It is not a manifestation of cancer which spreads to the skin via the blood stream.
Dr Tiver noted that Assistant Professor Quinn was not factually correct in stating that Mr Parker had symptoms related to the right side of his thoracic cavity within weeks of the diagnosis and treatment to the inguinal region where his cancer first produced symptoms. The true situation, Dr Tiver noted, was that Mr Parker presented to the Accident and Emergency Department at Westmead Hospital in early January 1997 with pain which ultimately proved to be due to bone metastases in the pelvis. The right pleural effusion was detected on a routine chest X-ray at that time and was asymptomatic. A CT scan also showed a metastasis in the spleen. Dr Tiver concluded that malignant involvement of the right hemi thorax was detected in an overall clinical picture of rapidly evolving widespread metastatic disease. Further, Dr Tiver could find no reference to Assistant Professor Quinn's finding that Mr Parker had a large single mass in the lung as described in several chest radiograph reports. Dr Tiver noted that none of the plain chest X-ray reports available to him mentioned such a mass, reporting only a right pleural effusion. There was a CT scan of the chest undertaken on 9 January 1997, which reported "the suggestion of a rounded mass-like opacity in the collapsed portion of the right mid lung measuring approximately one centimetre". While conceding that this could be a primary or secondary malignancy, in Mr Parker's case with widely disseminated cancer, it was more likely to be a secondary metastasis, Dr Tiver concluded.
Dr Tiver further disagreed with Assistant Professor Quinn's statement that "aggressive cutaneous malignancies rarely metastasise to bone". This supposition is factually incorrect, Dr Tiver noted, stating that bone metastases are very common from malignant melanoma and he himself had seen a number of cases from skin cancers of other histological types.
While Assistant Professor Quinn concluded that the pattern of metastatic spread of the malignancy seen on the PET scan was consistent with late stage primary lung cancer with metastases, Dr Tiver opined that a conclusion of metastases from another primary site would be equally plausible and consistent.
Dr Tiver concluded:
"…it is not possible to exclude a diagnosis of primary carcinoma of the lung and hence a link to Mr Parker's smoking history. I would think, however, that the balance of probabilities significantly favours the alternative diagnosis of carcinoma of skin appendage origin for which there are no known causal factors."
Dr Tiver provided a supplementary report dated 8 January 2001 (Exhibit R3). Dr Tiver restated that the issue in this matter was whether or not the primary site of Mr Parker's malignancy was in his right lung or the skin of the perineum. Dr Tiver agreed that if Mr Parker's tumour mass in the right groin was a metastasis, then statistically, the lung would be the most likely primary site of origin. However, Dr Tiver noted that the histology of the tumour removed from Mr Parker's groin, including the significance of the presence of Extramammary Paget's Disease, is the most important issue in deciding the likelihood of the two alternative sites of origin. Dr Tiver noted that neither he nor Assistant Professor Quinn are qualified pathologists, let alone specialists in the pathology of skin malignancies. Dr Tiver noted that he had not conducted a comprehensive literature review because of lack of time and because of his impressions gained from a computerised search of medical literature. The articles were in journals of limited availability and this was also the case in many of the articles cited by Assistant Professor Quinn. Dr Tiver noted that it would take many weeks to determine whether these references actually supported the contentions attributed them. Dr Tiver doubted that there was any benefit in Assistant Professor Quinn and himself "trading" articles on a subject in which neither of them were experts. Dr Tiver concluded, however, that neither of the articles provided by Assistant Professor Quinn made any reference to Extramammary Paget's Disease as a manifestation of metastases to the skin from a distant site. Both articles, Dr Tiver opined, supported his understanding as contained in his report that when Extramammary Paget's Disease is accompanied by invasive malignancy, that malignancy arises from either the adnexal glands of the skin or organs immediately adjacent and opening onto the affected skin and in the case of the perineum, the rectum or urethra.
Dr Tiver concluded that there is a "certain lack of credibility about certain aspects of the supplementary report". Dr Tiver also commented on Assistant Professor Quinn's statement, that it was not unusual in patients with advanced cancer in hospice care to have rashes in the groin, armpits, around the anus, behind the ears or on eyelids which are treated as fungal infections or other skin complaints, but are actually Extramammary Paget's Disease. Dr Tiver noted from his 27 years of experience in oncology that he regarded this statement as "totally untrue".
Submissions
Mr Vincent for the Applicant, noted that the cancer referred to in Mr Parker's Death Certificate as testicle carcinoma was actually cancer of the skin of the groin region. There is a dispute in this matter now as to what was the primary site of the cancer. Mr Vincent proposed a number of alternate submissions to connect Mr Parker's death with his service.
Firstly, Mr Vincent submitted that Mr Parker developed a smoking habit during his war-service and that this smoking habit led to his contracting a primary lung cancer, which contributed to his death by cardiorespiratory failure and/or by metastasis of the cancer to the skin in the groin.
Mr Vincent's alternate submission is that Mr Parker developed a smoking habit during his war service and that this smoking habit led to his contracting chronic airways limitation. Mr Parker's chronic airways limitation then contributed to the cardiorespiratory failure which caused his death.
At the time the Commission determined Mrs Parker's claim for Widow's Pension on 12 November 1997, there was in force a Statement of Principles concerning Chronic Bronchitis and Emphysema, Instrument Number 74 of 1997. Also in force at that time was the Statement of Principles concerning Malignant Neoplasm of the Lung, Instrument Number 30 of 1996 as amended by Instrument Number 150 of 1996. Mr Vincent noted that Instrument Number 74 of 1997 addressed both chronic bronchitis and chronic emphysema, either one of which constituted chronic airways limitation ("CAL"). At hearing, Mr Vincent noted that the Respondent conceded that Mr Parker suffered from CAL. Mr Vincent submitted that the relevant factors for Mr Parker's CAL are Factors 5(a), (b) and (e). These factors stated:
"(a) for chronic simple, chronic mucopurulent or asthmatic bronchitis only,
(i)being exposed to airborne irritants resulting in acute respiratory symptoms occurring within the 48 hours immediately after that exposure, within the 30 days immediately before the clinical onset of chronic bronchitis; or
(ii)smoking at least 15 pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis, and, where smoking has ceased, the clinical onset has occurred within one year of cessation; or
(iii)being exposed to airborne irritants resulting in acute respiratory symptoms occurring within the 48 hours immediately after that exposure, within the 30 days immediately before the clinical worsening of chronic bronchitis; or
(iv)smoking at least 15 pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical worsening of chronic bronchitis, and, where smoking has ceased, the clinical worsening has occurred within one year of cessation; or
(b)smoking at least 15 pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical onset of chronic bronchitis and/or emphysema; or
…
(e)smoking at least 15 pack-years of cigarettes, or the equivalent thereof in other tobacco products, before the clinical worsening of chronic bronchitis and/or emphysema; or
…"
In relation to the connection between smoking and the development of a malignancy of the lung, Mr Vincent referred the Tribunal to Factor 5(a) of Instrument Number 30 of 1996 as amended, concerning Malignant Neoplasm of the Lung, which stated:
"(a) in relation to any of the following kinds of malignant neoplasia of the lung:
(a)squamous cell carcinoma of the lung; or
(a)oat cell carcinoma of the lung; or
(a)small cell carcinoma of the lung; or
(a)malignant neoplasm of undetermined histology; or
(a)large cell carcinoma of the lung,
smoking cigarettes or other tobacco products for at least one half of a pack-year before the clinical onset of malignant neoplasm of the lung; or
…"
In relation to Mr Parker's smoking habit, Mr Vincent submitted that this applies to both submissions and causal connections of death with service, as proposed by the Applicant. Mr Vincent submitted that there is strong evidence that Mr Parker did not smoke prior to his Army service. The evidence relied on by the Applicant was from both Mrs Parker and from Mr Parker's younger brother, Mr Ronald Parker. Mr Vincent noted that the evidence from Mr R Parker was that the family upbringing was very strict, with the two boys living at home unless Ronald was away undertaking country work. The family always had dinner together most nights and it was Mr R Parker's very clear recollection that he did not see his brother smoke before the war.
Mrs Parker's evidence was that she recalled Mr Parker telling her that he commenced smoking during his service. In relation to a Westmead Hospital record which indicated that Mr Parker "smokes 10 cigarettes per day since the age of 15" (Exhibit A3), Mr Vincent submitted that the Tribunal should not give any weight to that record, as there was no evidence as to when the entry was made, by whom or on whose instruction and indeed, whether or not this was an accurate record of what Mr Parker reported. Both Mrs Parker and Mr R Parker confirmed in their evidence that they believed the hospital entry was incorrect. Further, the entry was expressed in the present tense and is consistent with the Veteran at the time of his hospital admission smoking 10 cigarettes per day and that he commenced smoking, perhaps at some unspecified amount at age 15 years.
Mr Vincent pointed the Tribunal to considerable evidence which, he submitted, established that Mr Parker developed a smoking habit during war-service. This related to Mrs Parker's evidence that although her husband said little about the war, she had recalled one occasion when he told her that he commenced smoking during the war. Further, Mr R Parker recalled that during their service it was the first time that he remembered his brother smoking and at that time, they would meet about twice a year when they would have a drink in a hotel and smoke. During war service when the brothers were together, Mr R Parker had estimated that they would smoke three or four cigarettes per hour. The Tribunal should also note, Mr Vincent submitted, that Mr R Parker had a useful knowledge of his brother's service conditions, as for an initial period they were both stationed at La Perouse. Mr R Parker had recalled that cigarettes were issued as part of servicemen's ration packs. There were also cigarettes available cheaply from the base canteen. After their service, Mr R Parker noted that there was a special issue of tobacco to servicemen.
Mr Vincent submitted that all the evidence established the Mr Parker had a war-caused smoking habit well in excess of the threshold required by each of the relevant Statements of Principles for Chronic Bronchitis and Emphysema and Malignant Neoplasm of the Lung. In this regard, Mr Vincent noted that Mr R Parker and his brother would have holidays together after service and Mr Parker was continuing to smoke. Mrs Parker was very truthful in her evidence and, although she was unable to guess the quantity consumed with any accuracy, she noted that Mr Parker always had his pouch of tobacco and that when they were out socially, he would be smoking constantly. Mrs Parker would purchase her husband's cigarette papers, but he would always buy his own tobacco. The undisputed evidence was that Mr Parker's smoking habit continued until 1996 when he became seriously ill.
Even if the Tribunal were to rely on the hospital record of a smoking history of 10 cigarettes per day at the age of 15 years, Mr Vincent submitted that there is abundant evidence that Mr Parker's average intake was in excess of that figure. Accordingly, even if the Tribunal was to find that Mr Parker commenced smoking 10 cigarettes per day at the age of 15, the abundant evidence was that there was a significant aggravation of his smoking habit arising out of his war-service.
Mr Vincent refuted Mr Modder's submission concerning the distinction between Mr Parker not in fact smoking and Mr R Parker not seeing him smoke. Mr Vincent submitted that obviously a witness could only give evidence concerning what was within his or her knowledge. The Tribunal should note, however, that given the close relationship and contact between the two brothers pre and during service, Mr Modder's distinction was a "theoretical nicety only". Mr Vincent emphasised that Mr R Parker was adamant in his recollection that to the best of his extensive knowledge, his brother William did not smoke prior to Army service. Mr Vincent submitted further, that Mr Modder did not properly address the question of an aggravation of a smoking habit by the veteran's service, if the Tribunal accepted the reliability of the hospital record asserting the commencement of a smoking habit was at the age of 15 years. Mr Vincent submitted that the test for aggravation is not one of "serious aggravation" as seemed to have been asserted by Mr Modder. The correct test, Mr Vincent contended, as provided by subsection 8(1)(b) of the Act, was whether, in Mr Parker's case, smoking is said to have led to his death and whether it arose out of or was attributable to war-service. This issue was discussed by the High Court in Repatriation Commission v Law (1981) 147 CLR 635 and confirmed in Repatriation Commission v Tuite (1993) 39 FCR 540. Further, Mr Vincent submitted that the application of the correct test for evidence in support of aggravation of a smoking habit is the same as that by which it has been asserted that Mr Parker's habit arose out of service. Mr Vincent submitted that the Tribunal should be reasonably satisfied that Mr Parker had a smoking habit to the requisite degree which gave rise to either chronic airway limitation or lung cancer.

Mr Vincent contended that the Tribunal should be satisfied that chronic airways limitation resulted in cardiorespiratory failure which contributed to Mr Parker's death. This view is supported by the opinion of Assistant Professor Quinn in his report of 31 December 2000 (Exhibit A2) where at page 2 he stated:
"…The clinical description of Mr Parker's demise is consistent with death from pulmonary failure that was multifactoral in basis including contributions from chronic obstructive lung disease, infection and the intrathoracic component of the malignancy under discussion."

Mr Vincent submitted that Dr Tiver in his report of 8 January 2001 (Exhibit R3) did not disagree with or otherwise comment on that opinion.

Referring to Mr Modder's submission at page 4, in which he states that Assistant Professor Quinn in his first report "rubbishes…as being pedantic" the claimed link between the veteran's chronic airways limitation and his death, Mr Vincent submitted that the Respondent's submission is a misrepresentation of the evidence, as it appears in the report and in fact does not represent the doctor's final opinion, where Assistant Professor Quinn further discussed the mechanism by which chronic airways limitation contributed to Mr Parker's death, at page 2 of Exhibit A2. Further, Mr Vincent submitted that the Respondent's contention that CAL was an incidental diagnosis does not take into account the comments themselves in the X-ray reports which clearly show the severity of the CAL. In this regard, Mr Vincent referred the Tribunal to the report of Dr Borsky, dated 11 October 1996. Dr Borsky noted that "the appearance [of the lungs] is consistent with advanced Chronic Airflow Limitation" (Exhibit R1). Further, an X-ray report of the same date at page 2 of Exhibit A3, recorded "Lung fields show advanced Chronic Airflow Limitation". Further, an entry dated 6 February 1997 at page 7 of Exhibit A3 stated: "The lungs are hyperexpanded consistent with CAL". Mr Vincent submitted that all these entries were months prior to Mr Parker's last hospitalisation in May 1997. Further, a radiological report of 24 May 1997 (Exhibit R1) stated "the left lung appears clear and hyperinflated due to underlying CAL". Further, Mr Vincent submitted that it was of no relevance that Mr Parker had not claimed CAL as a war-caused condition.
Referring to Mrs Parker's evidence, Mr Vincent submitted that it was not correct for the Respondent to characterise her evidence as being that her husband's CAL was not serious and that the veteran enjoyed generally good health prior to his cancer. Mr Vincent submitted that Mrs Parker's evidence was that her husband seemed always to have shortness of breath, which she particularly noticed after his retirement.
Mr Vincent referred the Tribunal to Repatriation Commission v Law (supra) in relation to the test by which Mr Parker's CAL contributed to his death. Mr Vincent noted from this decision that:
"The contribution need not be the sole or dominant cause: it is sufficient to show "attributability" if the cause is one of a number of causes provided it is a contributing cause."
Mr Vincent submitted that the evidence is clear that Mr Parker's lung function was significantly compromised, especially in the last months of his life, and that his lung function deteriorated greatly in the last weeks. The Tribunal was referred to Doolette v Repatriation Commission (1990) 21 ALD 489 where at 492, O'Loughlin J concluded:
"[I]f death is hastened because of the accelerated progress of a disease, which acceleration was itself caused by a war-caused condition, the proper conclusion would be that death was attributable to war service: Re Blyth and Repatriation Commission (1982) 4 ALN N147."
Mr Vincent then turned to discuss the issue of where Mr Parker's primary cancer was located. Before proceeding, however, Mr Vincent noted that if a smoking induced CAL was determined by the Tribunal to have contributed to the veteran's death, it would not be necessary for the Tribunal to determine whether or not the primary tumour suffered by Mr Parker occurred in the lung or on the skin of the groin.
In relation to the issue of the location of the primary tumour, Mr Vincent submitted that the opinion of Assistant Professor Quinn should be preferred, namely that the primary tumour was more likely than not to be in the lung. In support of this submission, Mr Vincent noted that generally lung cancer is far more common than Extramammary Paget's Disease and that lung cancer is the most common cause of cutaneous metastases.
In Mr Parker's case, Mr Vincent contended that he had exposure to a carcinogenic level of tobacco. Mr Parker had symptoms and a single large lesion detected on the right side of his thoracic cavity within weeks of the diagnosis of problems in the groin region. The lung lesion grew rapidly and a bone scan on 8 January 1997 showed bone metastases at several sites. Mr Vincent referred the Tribunal to Assistant Professor Quinn's view that, "aggressive cutaneous malignancies rarely metastasise to bone where as (sic) metastases to bone are common in the progressive course of lung cancer." (Exhibit A1, p 2). Further, the PET scan performed on 29 April 1997 showed:
"…diffuse areas of malignant disease including in the right lung, multiple bones, soft tissue and the lymph nodes of the axillae and neck. Such a pattern is consistent with late stage primary lung cancer with metastases" (Exhibit A1, p3)
Mr Vincent contrasted the metastases from skin cancer, other than melanoma, which are rare in non-immunosuppressed patients and sweat gland carcinoma, which, as Assistant Professor Quinn noted, only "rarely produce distant metastases" (Exhibit A2, p5). Mr Vincent noted that Assistant Professor Quinn had produced papers which supported his disagreement with Dr Tiver's opinion as to the mechanism by which Extramammary Paget's Disease operates, namely that "…Paget's Disease represents direct spread to the skin from an adenocarcinoma arising in an organ which lies immediately subjacent to the skin and which opens on to the skin" (Exhibit R2, p5).
Mr Vincent referred the Tribunal to pages 228 and 229 of the extract from a text by Freidman and Rigel, which proposed three mechanisms as to the pathogenesis and histogenesis of Extramammary Paget's Disease. The mechanisms proposed were:
"(1) origin from an adenocarcinoma in situ of the underlying sweat glands;
(2) origin from an adenocarcinoma in the epidermis;
(3)origin from "a multicentric effect of an unknown carcinogenic stimulus exerted upon the epidermis" (Exhibit A2)
Mr Vincent submitted that there is no evidence in Mr Parker's case of either mechanism (1) or (2) and mechanism (3) offered no specific cause. Therefore, Mr Vincent contended, there is nothing to show in Mr Parker's circumstances, other than tobacco and lung cancer being linked to his death, assuming the lung cancer to be primary. Mr Vincent further contended that the only evidence of carcinogenicity before the Tribunal is of the known carcinogen, tobacco, and the evidence of Assistant Professor Quinn supporting the view that the primary cancer most likely occurred in the lung. Mr Vincent noted that Dr Tiver agreed that if the tumour mass in the patient's groin was a metastasis, then the lung would most likely be the primary site.
In conclusion, Mr Vincent submitted that the straightforward explanation of the primary cancer being in Mr Parker's lung should be preferred, as this cancer is extremely common, particularly occurring in a person with a known exposure to a known carcinogen. The Respondent's submission of the occurrence of a primary cancer of a rare type, in Mr Parker's case should be dismissed, as it is not observed to be present in association with the theorised agents for the development of the cancer.
Mr Modder, for the Respondent, noted that Mr Parker suffered a groin cancer and initially required resection of a large tumour in October 1996. A scan taken on 2 January 1997 did not identify lung cancer. Further, a PET scan taken in April 1997 revealed that cancer had spread throughout Mr Parker's body, being evident in his liver, lung, bones and armpit. Mr Modder submitted that Mr Parker died of cardiorespiratory failure in June 1997. CAL was not listed as a cause of death. Given the history of Mr Parker's illness, the treatment and the histology, Mr Modder concluded that the primary site of the cancer was probably the testes or the scrotum area. Dr Tiver, Mr Parker's treating specialist, believed that the origin of Mr Parker's cancer was in the groin, whereas Assistant Professor Quinn believed the origin of the primary cancer was in the lung. Mr Modder, in the Respondent's written submissions, summarised the medical opinions in this matter as follows:
"Summary of opinions
1.Dr Tiver
a)Size and clinical appearance of tumour in groin was 14cm and was accelerating and fungating.
b)It cannot be said that a massive metastasis had its origin in a lung lesion so small it could not be detected on chest X-ray.
c)The histopathology was consistent with primary adenocarcinoma of skin appendage:
(i)Extramammary Paget's Disease (EMPD) is a primary skin malignancy
(ii)4/6 lymph nodes removed in operation contained metastaces (sic).
d)Skin appendage cancers in perineum are a distinct clinical entity.
e)No evidence for any other primary sire: Veteran was asymptomatic between October 1996 and January 1997; he suffered left pelvic pain October 1996; the plain chest X-ray was normal; and a January 1997 CT revealed a 1cm lesion [which] could be malignant.
2.Dr Quinn
a)Lung a common cancer site.
b)Lung cancer a common cause of EMPD.
c)Veteran smoked.
d)Veteran had chest symptoms after surgical recision.
e)Early scans may have missed lung cancer.
Bases for Doctor's conclusions
Dr Quinn (13 August 2000 report)
1.Lung is a more common cancer site – text.
2.Lung cancer is a more common cause of EMPD – text.
3.Smoking history – assumption. This assumption brings into question whether Dr Quinn has even seen the clinical notes from Westmead Hospital Oncology Department served on the Respondent by Dibbs Crowther.
4.Early chest symptoms after resection; cancer not detected 2/1/1997 and hence a neoplasm was possible before that. It is possible a radiograph did not detect a sizeable lung primary. Such observations amount to an argument from silence.
5.PET scan findings show where else cancer had spread to. Dr Quinn looks at the PET scan and assumes the source to be lung.
6.Dr Quinn relies on discussions with colleagues, and states the consensus favours primary lung cancer. We do not know who the colleagues were, the questions that were put to them or what they saw. There may have been detailed conferences or tearoom discussions of a brief and informal nature. It is not clear from the report.
Dr Tiver (6 November 2000 report)
1.Veteran's treating specialist for last year of his life.
2.Access to all the Veteran's hospital records.
3.Access to other specialists involved in the Veterans' care.
4.Reliant on histopathology.
5.His knowledge of EMPD is supported by text.
6.Removal of 4/6 lymph nodes is objective criteria for his conclusions.
7.Other treating specialists consulted: Dr Michael Bilous, Head of Histopathology; Dr Anthony Peduto, Staff Radiologist; Dr George Lascos (sic), Director of Nuclear Medicine."
Mr Modder submitted that the Tribunal has to weigh up the reports from a treating specialist, who had access to all clinical material and who provided a balanced and reasoned report and a medico-legal expert, Assistant Professor Quinn, who is reliant on texts and statistics and who provided a scholarly approach in matters where the reasonable hypothesis standard of proof is being relied upon. Mr Modder submitted that Assistant Professor Quinn never saw Mr Parker nor treated him. Further, while Assistant Professor Quinn refers to conversations he had with his colleagues, the Tribunal is not aware of with whom or the depth of these discussions.
Dr Tiver points to a number of factual errors and submitted that some of Assistant Professor Quinn's "conclusions are cavalier". Further, Mr Modder submitted that some of Assistant Professor Quinn's assumptions were questionable, for example, in relation to Assistant Professor Quinn's conclusion that Mr Parker's smoking habit was war-caused, when in fact clinical records state that Mr Parker smoked six years before his service. Mr Modder submitted that the Tribunal should find that there is considerable doubt as to whether Assistant Professor Quinn saw the clinical notes from the Westmead Department of Oncology, given his acceptance of smoking as a causal factor.
In relation to Mr Parker's smoking history, Mrs Parker told the Tribunal that her husband had told her that he took up smoking during the war. This oral evidence conflicted with documentary evidence contained in the Westmead Hospital records. Mr R Parker's evidence is that he never saw his elder brother smoking prior to the war. Mr Modder submitted that Mr R Parker was, however, two years younger than Mr Parker and his brother also worked in the city at Neon Signs from the age of approximately 15 years. Mr Parker worked a 44 hour week and Mr R Parker could not say whether his older brother smoked at work or not, as he was still at school. Mr R Parker's evidence was simply that he had not seen his brother smoking before the war and he could not say definitely whether Mr Parker did smoke or not at the age of 15; he simply did not know.
In relation to the Westmead Hospital report that Mr Parker smoked since age 15, Mr Modder suggested that there is no doubt that this information came from Mr Parker himself and there is no reason therefore to believe that Mr Parker's own information to his doctor was incorrect. Mr Modder submitted that it would be difficult to understand why a doctor would have taken such a history, if Mr Parker had not provided it.
Mr Modder submitted that the Tribunal is not bound by the rules of evidence and referred to the "Parol evidence rule" which stipulates that where a conflict emerges between oral and documentary evidence, the details in the records should be preferred, the assumption being that they are more reliable. Accordingly, Mr Modder submitted that Mr Parker's history to hospital staff should be given more weight, given that this was information provided in the context of his being treated for a serious condition where one must assume that correct information was imperative.
Referring to the case law, in Davenport v Repatriation Commission (1995) 39 ALD 560, Mr Modder submitted that in relation to a short period of non-stressful service, it was concluded that there was an inherent improbability of isolating a very short period of naval service and that the temporal connection between commencement of smoking and service was not established, as naval service was not stressful. In McGlynn v Repatriation Commission (1980) 1 RPD 210, the case dealt with an increase in smoking habit. The Court held that the Veteran smoked prior to operational service and that the habit was intensified during a period when the veteran was a prisoner of war. There was immense stress and hunger which led to an increase in smoking. In Re Withers and Repatriation Commission [2000] AATA 990, that Tribunal in dealing with an increase in a smoking habit, found that there was a well established habit before service which continued and increased post service. Some increasing habit after service was not attributable to service and was considered to be more related to the veteran's social life.
In relation to the issue of CAL, Mr Modder submitted that the link between CAL and Mr Parker's death was made in the week of the hearing and there was no medical support for this proposition from Dr Tiver, Mr Parker's treating doctor. Mr Modder submitted that Mr Parker died with CAL, but not because of it. CAL was detected on X-ray in the context of Mr Parker's examination for cancer and was therefore an incidental diagnosis. It had no contribution to his death, Mr Modder contended.
On a more pragmatic level, Mr Modder submitted that if the level of treatment for cancer and CAL were compared, the records would reveal the treatment for CAL was minimal. CAL was never claimed by Mr Parker as a war-related condition and Mrs Parker's evidence was that it was not serious, noting that Mr Parker enjoyed generally good health prior to his cancer. In any event, Mr Modder submitted that Mr Parker smoked pre-war and hence he did not have a war-caused smoking habit. Further, the Death Certificate did not list CAL as a secondary cause of death. In conclusion therefore, Mr Modder submitted that in relation to CAL, the records did not reveal that Mr Parker's lungs were compromised by CAL, but rather by cancer.
Mr Modder submitted that generally Mr Vincent's submissions on behalf of the Applicant ignored the medical records and Dr Tiver's analysis of them. In relation to Mr Parker's smoking habit, the evidence of his younger brother was that he did not ever see Mr Parker smoke and he does not say that his brother did not smoke before the war. Further, the Tribunal should, Mr Modder contended, give more weight to details of hospital records.
Mr Modder strongly submitted that the link between smoking and eligible war service was not established and nor has there been any explanation for any "serious aggravation of the habit". In any event, it is agreed that Mrs Parker could not quantify the number of cigarettes her husband smoked each day.
Mr Modder further concluded that Mr Vincent's sweeping statements that lung cancer may be a common cancer whereas Extramammary Paget's Disease is rare, do not assist the Tribunal in reaching a decision in this matter. Mr Modder submitted that the clinical records must be closely analysed together with radiological records. All such investigations do not, on the Respondent's submission, support the contention that the lung was the primary site of Mr Parker's cancer. Mr Modder submitted further, that the "straightforward" explanation of the cause of death from a primary lung cancer provided by Mr Vincent at paragraph 20 of his submission, was simplistic and sweeping and did not reflect the complexity of the matter.
In summary, Mr Modder submitted that Mr Parker died a cancer-related death and that the cancer's origin was the scrotum, which then metastasised to the pelvic bones, spleen and lungs. This cancer compromised Mr Parker's lung function, not CAL. Mr Modder submitted that the Tribunal should rely upon the reports of the treating specialist and the clinical records, concluding that Dr Tiver's opinions were more cogent than those of Assistant Professor Quinn. In relation to Mr Parker's smoking habit, Mr Modder contended that this was not war-caused.
Mr Modder noted that the correct standard of proof in deciding this matter was on the balance of probabilities, referring the Tribunal to Briginshaw v Briginshaw (1938) 60 CLR 336 which held that reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences. In all the circumstances, Mr Modder submitted that the decision under review should be affirmed.
Findings
The Tribunal has reached a decision in this matter, taking into account the oral and documentary evidence, the submissions and legislation. The Tribunal finds that Mrs Parker and Mr Ronald Parker provided unembellished evidence and considers them witnesses of truth.
It is often difficult in matters dealing with the death of a veteran to reach a conclusion about the circumstances leading to the veteran's death. In Mr Parker's case, the Tribunal has a picture of his being reluctant to seek medical attention for any of his health issues or to discuss his problems with his wife.

A submission put to the Tribunal is that Mr Parker died because of chronic airway limitation, caused by a service-related smoking history. Referring to the causes of death contained in Mr Parker's Death Certificate, it is recorded that Mr Parker died of cardiorespiratory failure of two weeks' duration and metastatic lung cancer from testicle cancer of eight months duration (T7). There are a number of records in the hospital clinical notes and radiological reports which clearly indicate that Mr Parker had chronic airway limitation.
Mrs Parker's evidence was that her husband would "huff and puff" and would not walk the short distance to the shops, preferring to drive. Mr R Parker also confirmed that his brother had a significant cough.
While Dr Tiver and Assistant Professor Quinn disagree as to the likely site of the primary cancer suffered by Mr Parker, both agree that the cause of death was "directly attributable to the burden of widely disseminated carcinoma" as opined in Dr Tiver's report of 6 November 2000 (Exhibit R2, p4) or because of the "cancer burden within his [Mr Parker's] right lung, which induced shunting of blood through his lungs and progressive hypoxia", as reported by Assistant Professor Quinn in his report of 13 August 2000 (Exhibit A1, p3)). Assistant Professor Quinn disagreed with the finding on Mr Parker's Death Certificate that a cause of death was cardiorespiratory failure, noting that:
"Essentially most deaths occur because the heart and lungs no longer work and this designation on death certificates has been criticised as conveying no information of merit." (Exhibit A1, p3)
The Tribunal must determine on the available evidence whether or not Mr Parker had a service-related smoking habit. The Tribunal considers that the medical records from Westmead Hospital, which indicated that Mr Parker had been smoking 10 cigarettes since he was 15 years old, must be taken into account. Mr R Parker's evidence was that in fact his brother was working at age 15 at Neon Signs and, whilst living at home, was obviously away from the home during the course of his attending his full-time job. Further, it is the Tribunal's understanding that Mr R Parker did not see his brother for some periods of time. Mr R Parker was two years younger than his brother and all that he could report was that he did not see his elder brother smoke. The Tribunal, having considered the authorities, is of the view that Mr Parker had a well-established smoking habit prior to his service. There is no evidence that Mr Parker's smoking habit increased, decreased or indeed stayed the same during and following service. In these circumstances, the Tribunal is reasonably satisfied that on the balance of probabilities, Mr Parker did not have a service-related smoking habit.
Based on the objective medical evidence, the opinions of Dr Tiver, Assistant Professor Quinn and the evidence of Mrs Parker and her brother-in-law, the Tribunal finds that Mr Parker did suffer from CAL. We have found, however, that Mr Parker did not have a service-related smoking habit. Accordingly, the Tribunal further determines that, on the balance of probabilities, Mr Parker's CAL was also not war-caused.
The Tribunal next considers Mr Vincent's submission that Mr Parker died from a primary cancer of the lung, which he submitted was induced by a service-related smoking habit. The complexity of this matter in determining the primary site of Mr Parker's cancer is reflected in the forceful and differing opinions of the medical experts in this matter, Dr Tiver and Assistant Professor Quinn. Dr Tiver, Mr Parker's treating oncologist, looked after Mr Parker between October 1996 and May 1997. Dr Tiver's diagnosis of the cause of Mr Parker's death is that he had a primary carcinoma of the skin appendage origin arising in the perineum, which then showed rapid metastatic dissemination after a palliative surgical resection of the primary tumour in October 1996. The Tribunal finds it significant that the size of the tumour was 14 centimetres at its maximum dimension and it was ulcerating and fungating. Dr Tiver considered it unlikely that Mr Parker's lung was the site of a primary cancer, because it was unlikely that a lung cancer would remain so small as to be invisible on a plain chest X-ray while giving rise to such a massive metastasis in the groin.
Dr Tiver acknowledged that while it would be possible for metastases to the skin to ulcerate and fungate, it was not common and the fact of the size of the fungating mass in the groin indicated that it is more likely to be the primary site of cancer.
The Tribunal is reasonably satisfied that the primary site of Mr Parker's cancer was in the skin appendage in Mr Parker's groin. The Tribunal has so decided taking into account the size of the mass in Mr Parker's groin, the fact that there was no evidence of a mass in the lung shown on plain X-ray in October 1996 and the subsequent pattern of malignant involvement of the right hemi thorax, as seen in plain chest X-rays, CT scans and a later PET scan. By January 1997, there was radiological evidence of right pleural effusion. While there was difficulty in interpreting the images in the CT scan of 9 January 1997, the Tribunal is reasonably satisfied with the opinions of Dr Tiver and Dr A Peduto that there was a single, one centimetre non-specific nodule in the right lung that was more likely than not, particularly because of its size, to be a secondary.
The Tribunal also placed more weight on there being a primary cancer in the groin because this was not just Dr Tiver's opinion, but also that of other members of the Westmead Hospital team treating Mr Parker. Thus, Dr M Billous, Head of Histopathology at the Institute of Clinical Pathology and Medical Research at Westmead Hospital, who had also reported on the specimen from the excision of Mr Parker's groin mass, was of the view that the histopathology in Mr Parker's case was most consistent with a primary adenocarcinoma of the skin appendage origin showing areas of squamous differentiation, particularly because of the presence of Extramammary Paget's Disease. Dr Tiver's opinion, which the Tribunal accepts, is that this condition almost always occurs in association with primary adenocarcinomas of skin appendage origin. Further, the Tribunal is reasonably satisfied with this conclusion, because of the presence of four or six right inguinal lymph nodes removed at the resection which contained metastases. On the balance of probabilities, the Tribunal is in agreement with Dr Tiver's opinion, that the evidence is much more consistent with Mr Parker's groin mass being a primary, with secondary spread to regional lymph nodes, rather than being of a metastatic origin.
When the Tribunal considers the course of Mr Parker's demise, it appears that after his resection operation in October 1996, Mr Parker was asymptomatic until early January 1997 when he developed pain in the left pelvis. A PET scan in April 1997 showed widespread cancer, including multiple bones, soft tissues of the back, axillae and neck and the right hemi thorax. The Tribunal notes that Assistant Professor Quinn opined that within weeks of Mr Parker's diagnosis and treatment to the inguinal region, where his cancer first produced symptoms, he had symptoms related to the right side of his thoracic cavity. On the Tribunal's understanding of the history of this matter and as reported by Dr Tiver, this assertion by Assistant Professor Quinn was not factually correct. As the Tribunal understands it, Mr Parker was taken to the Accident and Emergency Department at Westmead Hospital in early January 1997 with pain which ultimately proved to be due to bone metastases in his pelvis. A right pleural effusion was detected on a routine chest X-ray at that time and was asymptomatic. A CT scan later in January 1997 also showed a metastasis in the spleen. Thus, the Tribunal concluded, and as noted by Dr Tiver, that malignant involvement of the right hemi thorax was detected in an overall clinical picture of rapidly evolving, widespread metastatic disease.
In reaching its findings in this matter that Mr Parker died of carcinoma of the skin appendage origin, the Tribunal considers that Dr Tiver's opinion, as supported by a number of Mr Parker's medical management team, cannot be ignored in the overall context of their ongoing clinical management of Mr Parker's condition.
In reaching its conclusion in this matter, the Tribunal is in no way disrespectful of the opinions of Assistant Professor Quinn. The Tribunal must, however, take all of the evidence into account and this includes not only expert opinion, but actual clinical involvement and findings relating to direct knowledge of the patient, Mr Parker. Assistant Professor Quinn provided a scholarly and theoretical analysis of the various medical issues involved and related this to medical findings and medical investigations and reports. While Assistant Professor Quinn notes that lung cancer is the commonest cause of cutaneous metastases, as noted in his report of 31 December 2000, the Tribunal must consider the totality of the evidence, including the clinical context. Similarly, in relation to the articles referred to by Assistant Professor Quinn, while these may have some theoretical merit, they must always be seen in the overall context of the individual factors of Mr Parker's case.
Accordingly, the Tribunal finds that the cause of Mr Parker's death was metastatic lung cancer from carcinoma of the skin appendage origin, for which there are no known causal factors. There is also no relevant Statement of Principles for this condition. In these circumstances, the Tribunal finds that, for the reasons given above, it is reasonably satisfied that the material available to it does not raise a connection between Mr Parker's death and the relevant service as required by the Act. The Tribunal is therefore required to affirm the decision under review, that the death of Mr Parker was not related to his service.
I certify that the 113 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member and Dr J Campbell, Member
Signed:         ............[sgnd]..................................................................
  Stella Vaughan, Associate
Date of Hearing  11 January 2001
Date the Tribunal Received
Final Written Submissions            12 March 2001
Date of Decision  12 June 2001
Counsel for the Applicant              Mr M Vincent of Counsel
Solicitor for the Applicant              Mr S Laurie, Dibbs Crowther and Osborne
Solicitor for the Respondent         Mr S Modder, Departmental Advocate