Repatriation Commission and Margaret Prior
[2013] AATA 684
[2013] AATA 684
Division Veterans' Appeals Division File Number(s)
2012/0162
Re
Repatriation Commission
APPLICANT
And
Margaret Prior
RESPONDENT
Decision
Tribunal Mr RP Handley, Deputy President
Dr M Couch, MemberDate 24 September 2013 Place Sydney The decision under review is affirmed.
.............................[SGD].................................
Catchwords
VETERAN'S ENTITLEMENTS - widow's pension - death from suicide - nuclear testing in Monte Bello islands - veteran flew planes involved in Operation Mosaic – veteran suffered from on-going skin condition causing chronic pain - whether veteran rendered British nuclear test defence service - whether veteran was exposed to ionising radiation - whether veteran developed Pemphigus Erythematosus from ionising radiation exposure – reasonable hypothesis satisfied – not satisfied beyond reasonable doubt that incapacity did not arise from war-caused disease – decision affirmed
Legislation
Veteran’s Entitlements Act 1986 ss 9, 68, 69B, 70, 119, 120, 196B
Cases
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Gilkinson v Repatriation Commission (2011) 197 FCR 102
Kaluza v Repatriation Commission [2010] FCA 1244
McKenna v Repatriation Commission (1999) 86 FCR 144
Repatriation Commission v Budworth (2001) 116 FCR 200
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Knight (2012) 202 FCR 451Secondary Materials
Statement of Principles concerning Suicide and Attempted Suicide, No. 11 of 2010
REASONS FOR DECISION
Mr RP Handley, Deputy President
Dr M Couch, MemberDate: 24 September 2013
The Repatriation Commission (the Commission) has applied for a review of a decision of the Veteran’s Review Board (VRB) to set aside a decision of the Commission and substitute a decision that Mr Colin Prior’s death was war-caused with the result that the Commonwealth of Australia was liable to pay Mrs Margaret Prior (the Claimant) a war widow’s pension from 20 April 2010.
Background
Mr Prior served in the Royal Australian Air Force (RAAF) from 30 November 1953 to 1 December 1986, retiring at the rank of Air Commodore. The Claimant contends that Mr Prior’s service included British Nuclear Test Defence Service (BNTDS) on 16 May 1956 in addition to his accepted operational service from 30 May 1965 to 9 June 1965 in Vietnam and his other ‘defence service’ from 7 December 1972 to 1 December 1986.
Mr Prior was born in 1934 and died of carbon monoxide poisoning on 19 October 2001, aged 67. The Claimant contends that on 16 May 1956, Mr Prior, then a Flight Sergeant, was the pilot of a Neptune aircraft that penetrated a nuclear cloud resulting from the detonation of a nuclear device at the Monte Bello Islands off the north western coast of Western Australia during British nuclear weapons testing. Mr Prior subsequently developed a chronic skin condition. There are medical records of him being treated for skin conditions from 1975. The Complainant contends that Mr Prior was suffering from a skin condition and depression related to his BNTDS at the time he committed suicide by carbon monoxide poisoning.
Mr and Mrs Prior were married in 1955 and had five children. Mrs Prior is now aged 76. She first lodged a claim for a war widow’s pension on 24 July 2003 contending that Mr Prior’s death was as a result of depression due to his experiences in the RAAF, but on 5 August 2003, the Commission decided that Mr Prior’s death was not related to his service.
On 22 July 2010, Mrs Prior lodged a new claim for a war widow’s pension claiming that at the time of his death as a result of carbon monoxide poisoning her husband was suffering from chronic pain of at least three months’ duration attributable to a skin condition. On 28 January 2011, the Commission once again decided that Mr Prior’s death was not related to his service. On 21 February 2011, Mrs Prior lodged an application for a review of this decision with the VRB. On 11 October 2011, the VRB decided to set aside the Commission’s decision and substitute a decision that Mr Prior’s death was war-caused and that Mrs Prior was therefore entitled to payment of a pension from 20 April 2010. On 12 January 2012, the Commission applied to the Tribunal for a review of the VRB decision.
Issues and Legislation
Under s 70 of the Veteran’s Entitlements Act 1986 (Cth) (the Act), a veteran’s widow will be eligible for a pension where the death of a member of the Defence Forces was defence-caused. The death of the member will be defence-caused if, relevantly, the death arose out of or was attributable to any defence service of the member. Section 68(1) defines ‘defence service’ as including British nuclear test defence service (BNTDS). Section 69B states relevantly:
…
(2) A person rendered British nuclear test defence service while the person was a member of the Defence Force and rendered service in an area described in the table at any time during a period described in the table for that area:
British nuclear test defence service in an area within a period
Item
Area
Period
1
The area within 10 kilometres of Main Beach on Trimouille Island in the Monte Bello Archipelago
The period:
(a) starting at the start of 3 October 1952; and
(b) ending at the end of 19 June 1958
(3) A person rendered British nuclear test defence service while the person was a member of the Defence Force and was involved at any time during a period described in the table in the transport, recovery, maintenance or cleaning of a vessel, vehicle, aircraft or equipment that was contaminated as a result of its use in an area described in the table for that period:
British nuclear test defence service relating to work on contaminated things
Item
Period in which involvement occurred
Area where thing was contaminated
1
The period:
(a) starting at the start of 3 October 1952; and
(b) ending at the end of 19 July 1956
The area within 10 kilometres of Main Beach on Trimouille Island in the Monte Bello Archipelago
2
The period:
(a) starting at the start of 15 October 1953; and
(b) ending at the end of 25 November 1953
The area within 25 kilometres of the Totem test sites at Emu Field
3
The period:
(a) starting at the start of 27 September 1956; and
(b) ending at the end of 30 May 1963
The area within 40 kilometres of any of the Buffalo or Antler test sites near Maralinga
(4) A person rendered British nuclear test defence service while the person was a member of the Defence Force and, at a time between the start of 3 October 1952 and the end of 31 October 1957, flew in an aircraft of the Royal Australian Air Force or the Royal Air Force that was at that time:
(a) used in measuring fallout from nuclear tests conducted in an area described in the table in subsection (2); and
(b) contaminated by the fallout.
The first issue for the Tribunal is whether Mr Prior rendered BNTDS; this is a question of fact to be determined according to the Tribunal’s reasonable satisfaction (s 120(4)). There is no dispute that, on 16 May 1956, Mr Prior was not flying in an aircraft used in measuring fallout from the nuclear test conducted at the Monte Bello Islands. Thus, s 69B(4) is not in issue. The question, therefore, is whether he flew in a RAAF aircraft in an area contaminated by the fallout of the nuclear test conducted on 16 May 1956, that is within an area of 10 kilometres of Main Beach on Trimouille Island in the Monte Bello Archipelago.
The second issue for the Tribunal is whether Mr Prior suffered from the claimed disease. At the hearing, the Claimant contended that Mr Prior was suffering from severe dermatitis at the time of his death as a result of his exposure to radiation when his aircraft flew through a radiation cloud without protection, causing chronic pain of at least three months duration. The Claimant also contended that at the time of his death, Mr Prior was suffering from a psychiatric condition, namely a depressive disorder, of which the chronic pain resulted from Mr Prior’s severe dermatitis was a major cause, and this depression led or contributed to Mr Prior’s suicide. The Tribunal must “identify the collection of relevant symptoms” and decide whether it is satisfied that Mr Prior suffered from the claimed diseases or some other injury or disease: Repatriation Commission v Budworth (2001) 116 FCR 200 at [19]. Again, this is a question of fact to be determined according to the Tribunal’s reasonable satisfaction (s 120(4)).
This third issue to be determined by the Tribunal is whether Mr Prior’s death was defence-caused. Pursuant to s 120(2), where a claim for a pension in respect of the death of a member of the Forces relates to BNTDS rendered by the member, the Commission shall determine that the death was defence-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. The Commission shall be so satisfied if, after consideration of the whole of the material before it, the Commission is of the opinion that the material before it does not raise a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the person (s 120(3)). Where there is an applicable Statement of Principles (SoP), s 120A requires the reasonableness of the hypothesis to be assessed by reference to that SoP. In this case, the applicable SoP is SoP No 11 of 2010, ‘Suicide and Attempted Suicide’.
In making such an assessment, the questions that the Tribunal must address in its decision are those set out by the Full Federal Court in Kaluza v Repatriation Commission [2010] FCA 1244 (Kaluza), which follows the Full Federal Court decision in Repatriation Commission v Deledio (1998) 83 FCR 82 (Deledio).
If satisfied that the symptoms constitute a disease as defined in s 5D of the Act, the question of whether that disease is defence-caused must be addressed in accordance with the following four steps identified by the Court in both the Deledio and Kaluza decisions:
(1) The Tribunal must consider all the material before it and determine:
(a) whether the material points to some fact(s) (the raised facts) which support a hypothesis connecting the disease with the circumstances of the operational service; and
(b) whether that hypothesis can be regarded as reasonable if the raised facts are true.
(2) If the raised facts point to a hypothesis of a connection, is there a SoP in force in respect of the kind of disease from which the veteran suffers?
(3) If a SoP is in force, the Tribunal must determine whether, in its opinion, the hypothesis is reasonable, meaning is it consistent with the ‘template’ found in the SoP? In particular, does the hypothesis raised contain one or more of the factors that the Repatriation Medical Authority has determined to be the minimum that must exist and be related to the veteran’s service?
In Repatriation Commission v Knight (2012) 202 FCR 451, (at [8]), (Knight), the Full Federal Court said there are two discrete issues at play in considering whether there is a reasonable hypothesis:
(i)does the material before the Tribunal point to the factor relied upon; and
(ii)does the material also point to that factor being related to the member’s service (s 196B(14))?
Section 196B(14) sets out the circumstances in which “[a] factor causing, or contributing to, an injury, disease or death is related to service rendered by a person” which relevantly includes (b) where “it [the injury, disease or death] arose out of, or was attributable to, that service”, and (d) where “it was contributed to in a material degree by, or was aggravated by, that service”.
The Full Federal Court in Gilkinson v Repatriation Commission (2011) 197 FCR 102 held that paragraph (d) is not a broader test that necessarily subsumes the paragraph (b) question of whether a factor arose out of, or was attributable to, that service. The meaning of “arose out of, or was attributable to” in s 9(1)(b) and s 196B(14)(b) is the same and requires a contributory cause that need not be the sole or dominant cause: see the Full Court decision, Perram J at [6-7] and [13], and Nicholas and Robertson JJ at [37]-[38].
(4) If the hypothesis is reasonable, the Tribunal must be satisfied beyond reasonable doubt that the incapacity did not arise from the war-caused disease. (Any fact finding must only be made at this final stage in the process.)
The Tribunal will consider each of the above issues in turn.
The first issue: Did Mr Prior render British nuclear test defence service?
The first issue, stated above, is whether Mr Prior rendered BNTDS. Between April and June 1956, a detachment of three RAAF Neptune aircraft from Number 11 Maritime Reconnaissance Squadron, based at Richmond, NSW, were deployed to RAAF Base Pearce and an airfield at Onslow in Western Australia in support of Operation Mosaic. Operation Mosaic was the code name used in connection with the testing of British nuclear weapons on the Monte Bello Islands, which are about 100 kms off the coast of Western Australia. Research conducted by Dr John McCarthy, a historical consultant, indicates that the Neptune aircraft were used to conduct safety patrols in the vicinity of the testing. Mr Prior was deployed to Western Australia with other Neptune crew on 15 April 1956 and returned to Richmond on 21 May 1956. On 16 May 1956, Mr Prior’s log book indicates that, as first pilot, he flew a Neptune aircraft, based at Onslow, for a period of six hours and 15 minutes. In his report dated 6 May 2012, Dr McCarthy states that:
… no evidence has been uncovered that the late veteran’s aircraft approached within 10 km of Main Beach on Trimouville Island [sic] in the Monte Bello Archipelago on 16 May 1956. Given that the designated tasks on deployment were described as ‘safety patrols seawards’ the possibility that these patrols might have taken the aircraft within the vicinity of Trimouville Island and the Main Beach there cannot be discounted. The Neptune had a range of 3540 km and given that the distance from Onslow to the Monte Bello Archipelego is only some 150 km in flying distance from Onslow then the aircraft might have been [sic] the vicinity of the Island on more than one occasion on that day. Such a conclusion, however, must remain speculation.
Dr McCarthy concluded:
It is possible the late Veteran’s aircraft may have been within 10 km of Main Beach on Trimouville Island in the Monte Bello Archipelago on 16 May 1956. Without a detailed record of the late Veterans’ [sic] aircraft movements on that day it is impossible to either confirm or deny.
At the hearing, Dr McCarthy said he assumes the patrols undertaken by the Neptune aircraft were to prevent intruders going into the test area. He accepted that, according to Captain McKenzie (see below), the aircraft might have patrolled an area within a radius of up to 100 nautical miles from the test area, but he said it is speculative to suggest that Mr Prior’s Neptune flew within 10 kms of the test area. He acknowledged that there is a paucity of evidence about the RAAF’s involvement in Operation Mosaic, and the Report of the Royal Commission into British Nuclear Tests in Australia (1985) (the Royal Commission Report) makes no reference to the involvement of Neptune aircraft in Operation Mosaic.
Dr McCarthy acknowledged that it is possible that Mr Prior’s Neptune could have come into contact with the mushroom cloud caused by the nuclear explosion: he said there is no record of any contamination found in relation to the Neptune in the aircraft’s logbook but agreed that this does not necessarily mean that this did not happen. He referred to a reference in the Royal Commission Report of contamination being found on the undercarriage of an aircraft that had flown from Onslow to Pearce (as Mr Prior’s Neptune did later on 16 May 1956), but there is no evidence that this was Mr Prior’s Neptune. Dr McCarthy noted that the fallout from the mushroom cloud was only detected at the airfield at Onslow on the following day (17 May 1956), after Mr Prior’s Neptune had left for Pearce.
Dr McCarthy told the Tribunal that he had sought advice from an experienced Neptune pilot, Tony Lowe, who has 5,000 flying hours in a Neptune, about conditions in this aircraft. The Neptune (which is not a pressurised aircraft and therefore operates at lower altitudes, being used principally for maritime surveillance) has been described as a “hot” aircraft, has air vents allowing outside air to enter the aircraft, and was sometimes flown with a rear window open to cool the interior with outside air. Thus, Dr McCarthy acknowledged that there is a very high probability of outside air getting into the aircraft.
Group Captain RJ Connor RAAF (Rtd) provided a letter dated 15 October 2012 at the request of the Claimant. He stated:
Navigation
Navigation in the mid 1950s was not as precise as we know it today. Distant measuring equipment was rudimentary as were inertial navigation systems and GPS etc., did not exist. Position fixing over the water out of sight of land was primarily determined by dead reckoning (heading/speed/time) with the occasional position line obtained from a ground radio station if available or by visual or radar fix from a land fall. An exact position could not always by guaranteed, especially in cloud, and therefore avoidance of the atomic cloud could be difficult.
Aircraft
The Neptune was a 1940s design and build and is an unpressurised aircraft. The aircraft at Onslow were neither sealed nor fitted with filters and the crew did not wear protective clothing. Consequently, any contamination in the atmosphere in which the aircraft flew would spread throughout the interior of the craft including the wheel wells. The wheels did not need to be lowered to be contaminated. …
The fact that the aircraft was unpressurised also meant that the operational altitude is less than 10,000 feet so that the crew would not need to go onto oxygen. For the operations in the restricted area, typically radar and visual search, the most likely altitude for the operations would have been about 5,000 feet or lower. Radar was the primary search instrument and the Neptune radar was very powerful and optimised for ocean surface surveillance; even by modern standards it is considered to be a very good radar for maritime patrol purposes and suffered very little degradation from cloud.
Captain R McKenzie RAN (Rtd) has also provided information about Mr Prior’s deployment for Operation Mosaic (letter dated 14 March 2012). Mr McKenzie is an experienced naval pilot with a total of 3,500 flying hours in at least a dozen military aircraft, who witnessed the nuclear explosion on 16 May 1956 while serving on HMAS Junee, a corvette, one of the support ships for Operation Mosaic. Mr McKenzie said at that time he had spent four years at sea and was a Sub Lieutenant and the junior of the three officers on board Junee, on which he was the navigator but also had a multitude of other tasks. He commenced his pilot’s training the following year.
Mr McKenzie said he and Mr Prior later became friends and he is one of three guardians for Mrs Prior who suffered a stroke about four years ago making it difficult for her to think and completely paralysing the right hand side of her body. She is currently living in a nursing home.
Mr McKenzie said Junee and HMAS Freemantle were present during Operation Mosaic to provide logistical support. Both ships were anchored off Trimouille Island until about 8.00 am on 16 May 1956 when they moved to a position about 12 or 13 nautical miles south of the Monte Bello Islands. No protective clothing was issued and they were dressed in their white summer uniforms and sandals. Mr McKenzie said they were not allowed to watch the detonation of the nuclear device, instead turning their backs to it, but they were aware of a brilliant blue flash which lasted about three or four seconds followed by the noise of a loud explosion, a shock wave and more noise. Once the flash had passed, they were able to turn and saw the mushroom cloud from the explosion which moved higher fast and quickly started to spread towards the coast as a result of wind coming from the west.
Mr McKenzie said they had been told there would be RAAF aircraft working within a radius of between 80 and 100 nautical miles of the Monte Bello Islands and searching the area for any shipping closing on the Islands. Mr McKenzie said he has never flown a Neptune aircraft but he is familiar with them. The Neptune aircraft had excellent radar for conducting maritime surveillance including for detecting submarine activity. His experience indicates that, for the purposes of searching the area, it is likely each aircraft would have been allocated a designated search sector.
In his letter dated 14 March 2012, Mr McKenzie said on one occasion at about lunchtime, when he and Mr Prior were both working at the Department of Defence Russell offices in Canberra, the British nuclear tests at the Monte Bello Islands came up in conversation and Mr Prior “informed me that during the sortie that he was flying at the time of the atomic tests his aircraft flew through the nuclear cloud”. Mr McKenzie told the Tribunal that he had not previously been aware that Mr Prior had been involved in Operation Mosaic. Mr Prior told him that his Neptune flew through the nuclear cloud. They had not been provided with any protective clothing and nor was there any ventilation filtration system on the aircraft. Mr McKenzie said:
7. It is probable that the aircraft entered the nuclear cloud because of adverse flying conditions. The aircraft’s primary task was to carrying out [sic] a Safety Patrol which involved a search for vessels accidentally or deliberately closing the Monte Bello Islands. Because of the location of the Monte Bello Islands from the coast, the datum of the search would most probably be the center [sic] of the cluster of the Monte Bello Islands and the search conducted in a circular area out to a radius of approximately 50 or even 100 miles.
8. The weather conditions in the Monte Bello area this day required the search aircraft to fly in cloud on Instruments for 2 hours during its 4 hour time on task. This detail is listed in Prior’s Flying Log Book under the column heading “Cloud Flying Actual”….
9. The interception of the nuclear cloud would have occurred when the aircraft was on the final leg of the search inbound to the datum, in cloud, when the detonation occurred. The aircraft would have been flying at a safe altitude and one that would provide the optimum radar detection for surface contacts. This altitude would probably be between 1000 and 5000 ft.
10. After the detonation occurred at about midday, the nuclear explosion would not have been heard or seen in the search aircraft because of aircraft noise and natural cloud. The nuclear cloud developed rapidly and was immediately effected [sic] by the wind drifting it towards the coast approximately 90 miles to the east. The cloud spread vertically and horizontally and within minutes drifted over the Monte Bellos. The aircraft could have intercepted and entered the drifting nuclear cloud and not have been aware of it until the aircraft broke out of the layer [sic] There may have been an increase in turbulence which could have alerted the crew but his may not necessarily have been detected.
At the hearing, Mr McKenzie said that Onslow is about 100 nautical miles south of the Monte Bello Islands and it is about 10 miles in from the coast to the airfield. The airfield, which was unsealed, was chiefly used by twin engine aircraft such as Dakotas but also included Neptunes. The RAAF base at Pearce is about 1,000 nautical miles south of the Monte Bello Islands and about 30 miles north of Perth. He said Neptunes were essentially World War II aircraft, not pressurised and with an altitude ceiling of about 20,000 feet. Ventilation came directly from the outside and the undercarriage doors were not intended to retain pressure. Mr McKenzie said the undercarriage of such an aircraft might be lowered to slow down the aircraft quickly, for example if the crew wanted to inspect a ship.
Mr McKenzie said each aircraft has a log book recording its flying hours, maintenance inspections, problems identified and work performed. In the case of Mr Prior’s Neptune, Mr McKenzie doubted that radiation contamination would have been noted because the crew probably was unaware of this. Mr Prior never mentioned his Neptune being contaminated. Each pilot also keeps a log book recording their flying hours which is signed by the pilot’s Flight Commander at the end of each month.
At the hearing, there was discussion of the entries in Mr Prior’s Flying Log Book for May 1956, which records that on 16 May 1956 Mr Prior flew his Neptune as First Pilot, with Flight Lieutenant Voges as Second Pilot, for six hours and 15 minutes for Operation Mosaic. Close inspection of the original Log Book revealed that an entry in the far right hand column for that day did not record two hours of that time flying in cloud (and therefore using instruments) on that day. Ditto marks from the next page referrable to the month of June (on the left side of the page for June) were showing through onto the far right hand column for May as a result of cellotape having been attached, making the paper more transparent. Mr McKenzie acknowledged that he might have made a mistake in paragraph 8 of his letter dated 14 March 2012 but said that while intermittent cloud would be noted in a pilot’s log book, just breaking through a layer of cloud would not. He said it would be difficult for an aircraft to distinguish between ordinary cloud and the cloud from a nuclear explosion.
Mr Prior’s Flying Log Book has a second entry for 16 May 1956. This records a flight of three hours and 20 minutes from Onslow to Pearce, of which two hours was in daylight and one hour and 20 minutes at night. Flight Lieutenant Voges was First Pilot and Mr Prior Second Pilot for this flight. Captain McKenzie said that given the time of year, sunset on that day was probably at about 5.30 pm, and so the Neptune probably took off from Onslow heading for Pearce at about 3.30 pm. The detonation of the nuclear device took place at 11.50 am.
Allowing time for refuelling, this means that if the Neptune was in the air for six hours and 15 minutes earlier that day, it could have taken off at about 9.00 am and landed back at Onslow at about 3.00 pm. Mr McKenzie estimated a flying time from Onslow to the area of the Monte Bello Islands of about 45 minutes. Allowing for a similar return journey to Onslow, one would expect the Neptune to have been conducting security patrols in the vicinity of the Monte Bello Islands for about 4 hours 30 minutes, approximately half that time before and half after the detonation of the nuclear device.
Mr McKenzie said Mr Prior was an honourable man; Mr McKenzie obviously believed Mr Prior’s account of flying through the nuclear cloud. Mr McKenzie said attempts were made to contact Flight Lieutenant Voges but it was subsequently confirmed that he is deceased. Mr McKenzie noted that Mr Prior never spoke to him about his skin condition or other ailments.
In the transcript of the record of interview between Detective Senior Constable (DSC) Crocker, the officer investigating Mr Prior’s death, and Mrs Prior on 20 October 2001 (the day after Mr Prior’s death), Mrs Prior was vague about what her husband had told her about his involvement in Operation Mosaic, beyond that he had been present when the detonation took place and might have told her that he turned his back to the explosion or that he was flying at the time. She did, however, say of her husband that you “[c]ouldn’t get a more honest chap”.
The Tribunal has been provided with Chapter 7 of the Royal Commission Report which deals with Operation Mosaic and the aftermath of the nuclear detonation on 16 May 1956. The observed cloud from this detonation was stated to be higher than predicted (paragraph 7.3.34) at between 15,500 and 24,000 feet on crossing the West Australian coast but it is not apparent to the Tribunal from the Report what the disposition of the cloud was in the hours immediately following the detonation and how this would have affected a Neptune aircraft undertaking a security patrol after the detonation. The Report states (paragraph 7.4.9) that a Varsity aircraft was used to survey the coastline from Onslow north to Broome on the morning of the day after the detonation – 17 May 1956 – and detected no radioactivity. The Report goes on (paragraph 7.4.10):
The first indication of fallout on the mainland was the detection on the leading edge of part of the under-carriage of an aircraft that had flown from Onslow to Pearce. The contamination must have been picked up when the wheel was down and so must have occurred at Onslow some time after D1 + 1 and most probably on D1 + 2.
As Dr McCarthy recognised, the Tribunal is faced with a paucity of relevant evidence. It is possible that the aircraft on which contamination was detected was Mr Prior’s Neptune. However, given that the Tribunal has not been referred to any record of this, for example in the aircraft’s log book, this seems unlikely. It does, however, seem likely that any contamination would have occurred in the air and not on the ground at Onslow, given that contamination on the ground was only detected on the day after the detonation, with Mr Prior’s Neptune having flown to Pearce later in the afternoon of the day of the detonation. Mr McKenzie told the Tribunal that, Mr Prior told him that he flew through the nuclear cloud. Mr McKenzie therefore considered it likely that this would have occurred in the course of Mr Prior’s Neptune undertaking its security patrol in the vicinity of the Monte Bello Islands in the two hours or so after the detonation and before the aircraft returned to Onslow. Mr McKenzie said it was possible that Mr Prior was not initially aware that his aircraft was passing through the nuclear cloud.
In making its decision, the Tribunal is required to take into account s 119(1)(h) of the Act. This provides relevantly that in making a decision in relation to a claim for a pension, the Commission:
…
(h) … shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to:
(i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and
(ii) the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping Force, as defined by subsection 68(1), was not reported to the appropriate authorities.
It is clear from the available evidence that Mr Prior was an honourable man, who, we note, latterly held very senior positions in the RAAF, retiring at the rank of Air Commodore, having been made a Member of the Order of Australia (AM). We are satisfied from Mr McKenzie’s account of his conversation with Mr Prior that Mr Prior told him that he had flown through the nuclear cloud in the aftermath of the detonation of the nuclear device on 16 May 1956. While the evidence establishes Mr Prior’s involvement in security patrols in a Neptune for Operation Mosaic in the two hours before and after the detonation of the nuclear device, the evidence does not indicate exactly where Mr Prior’s Neptune flew in the course of carrying out its security patrols.
We are satisfied from Mr McKenzie’s evidence that it is likely that the Neptune’s crew would have been allocated a search zone in the vicinity of the Monte Bello Islands, probably working within a radius of between 80 and 100 nautical miles of Trimouille Island. It is not clear exactly how close the aircraft would have flown to Trimouille Island in order to perform its search but we also note Mr Connor’s evidence about the accuracy of navigation at the relevant time and the sometimes inexact measurement of distance which, we extrapolate, could mean an aircraft flying closer to a fixed point than might otherwise be expected.
In our view, it is certainly possible, as Dr McCarthy acknowledged, that Mr Prior’s Neptune flew within 10 kms of Main Beach on Trimouille Island, and, pursuant to s 119(1)(h), taking into account the difficulty of ascertaining the facts given the passage of time since the nuclear test on 16 May 1956, the lack of witnesses and the paucity of relevant official records, we are reasonably satisfied from such evidence as is available to the Tribunal that the aircraft did so, thereby satisfying s 69B(2) of the Act. Thus, we conclude that Mr Prior rendered BNTDS.
The Tribunal notes that s 69B(3) is also relevant since Mr Prior was involved in the transport of an aircraft that we are reasonably satisfied was used in an area within 10 kms of Main Beach on Trimouille Island. If, as we are reasonably satisfied on the evidence available to us, Mr Prior flew through the nuclear cloud resulting from the detonation of the nuclear device, the aircraft - being unpressurised, unsealed, and taking in outside air for ventilation - would have suffered contamination. Thus, s 69B(3) is also satisfied.
the second issue: Did Mr Prior suffer from the claimed skin disease or depression?
The second issue for the Tribunal is whether Mr Prior suffered from the claimed skin disease or some other disease or depression. The first available medical records in relation to Mr Prior’s skin condition date from September 1975. He was examined by a Consultant Dermatologist, Dr P Hoare, on a referral dated 15 September 1975, who diagnosed Rosacea. He was also examined on several occasions by another Dermatologist, Dr Johnson, who in a clinical note dated 29 September 1980 states that Mr Prior was probably suffering from Rosacea. On Mr Prior’s discharge from the RAAF on 29 September 1986, the Visiting Medical Officer recorded that Mr Prior had been suffering from Rosacea for over 10 years but had, at that time, stopped treatment and there had been no evidence of Rosacea in the previous four months. In the intervening years, there are a significant number of records of his being treated for his skin condition with antibiotics.
At the request of the Claimant’s solicitors, Dr Hoare conducted a file review of Mr Prior’s case and prepared reports dated 18 June 2010 and 25 January 2013. In the later report, Dr Hoare reviews Mr Prior’s clinical history, refers to the clinical appearance of Mr Prior’s skin condition on examination by another Consultant Dermatologist, Dr G Ingram in August 1996, who recorded a “very pruritic” skin eruption on most areas of the skin, and refers to further clinical investigations. A skin biopsy was performed on 29 August 1996 and the sample preserved. The sample was recovered in January 2013, fresh sections were cut by the Pathologist, Dr B Dutta, who first examined the sample in 1996, and the pathology revealed was discussed by Dr Dutta and Dr Hoare. Dr Hoare stated:
Clinical history laid out in the Medical Spreadsheets together with Clinical Appearances, response to treatment, final Biopsy Report leads to a Definitive Diagnosis of Pemphigus Erythematousus, form Pemphigus Seborrhéique (often Degos) often called Senear–Usher Disease.
Dr Hoare also gave evidence at the hearing. He said that because no biopsy was performed of Mr Prior’s skin condition in 1975, it is possible that Mr Prior’s condition may have been misdiagnosed at that time. However, it is also possible that Mr Prior had Rosacea in 1975 and developed Pemphigus Erythematosus later. He acknowledged that Pemphigus Erythematosus is a very rare skin condition and it is not clear what causes the condition. He has found five papers linking the condition with radiation although it is not clear how much radiation could cause such a disease. This will probably depend on the DNA of the particular person. However, Dr Hoare said in his opinion it is most unlikely that Mr Prior’s Pemphigus Erythematosus was caused by something other than ionising radiation. Dr Hoare was asked about Dr Lobel’s evidence (discussed below) of his understanding from the literature that the reported cases of Pemphigus Erythematosus only occurred following exposure to high doses of radiation, for example with radiotherapy. Dr Hoare replied that the required level of exposure is unknown but, in his opinion, it may not need to be very high.
Dr Hoare was asked about the Forensic Pathologist, Dr Peter Herdson’s report dated 29 October 2001 prepared for the Coroner. On external examination, Dr Herdson stated: “No obvious abnormalities of the skin of the back were detected.” Dr Hoare said Pemphigus Erythematosus waxes and wanes: there will be exacerbations and remissions. The condition could have been in remission at the time of death. When in remission, there will not necessarily be any scars, only, possibly, scratch marks. No biopsy was done of the skin by Dr Herdson. Dr Hoare said one of the symptoms of the condition is severe pruritis – itching and pain - which he said can be terrible, and it is reasonable to say that it could cause a person to become depressed and think of suicide.
Dr E Lobel, Occupational Dermatologist, prepared reports for the Commission dated 18 October 2012 and 10 April 2013 and gave evidence at the hearing. He told the Tribunal that the most likely diagnosis of Mr Prior’s skin condition is Chronic or Atopic Dermatitis which is not, in his view, related to exposure to ionising radiation: there is no academic record of exposure to ionising radiation being a cause of Dermatitis. Dr Lobel said Atopic Dermatitis is more easily treated than Pemphigus. It is an intensely itchy condition which can come and go with treatment. It is possible that even if Mr Prior suffered from this condition, his skin might have been clear at the time of death.
Dr Lobel said that if Mr Prior had suffered from Pemphigus Erythematosus, a rare condition, one would have expected to see widespread blisters on a red base which would be constant and difficult to treat, only disappearing with intense treatment. Yet the Coroner’s Report records no such obvious abnormalities of the skin on Mr Prior’s back. In his report dated 10 April 2013, Dr Lobel said that if Mr Prior did suffer from Pemphigus Erythematosus, he disagrees with Dr Hoare’s conclusion that exposure to low level radiation was the probable cause. Dr Lobel said there is no academic record of Pemphigus Erythematosus in persons exposed to low level whole body radiation and no record of symptoms of the condition appearing 40 years after the exposure.
Dr Lobel said Rosacea is a very common skin condition that is confined to a person’s face. Symptoms, which come and go, include a burning sensation but not itching. There is no evidence in the literature of Rosacea being triggered by ionising radiation. Dr Lobel said that if Mr Prior suffered from Radiation Dermatitis, which he considered unlikely given that Mr Prior’s exposure to radiation would have been low level and that Radiation Dermatitis more commonly occurs as a result of therapeutic irradiation of malignancies (see Dr Lobel’s report dated 18 October 2012), this would usually present not more than 20 years after the event and not 40 years later. Moreover, Radiation Dermatitis does not come and go: it is constant, confined to the area which was subjected to the radiation, does not respond to treatment and may gradually worsen.
Dr JA Roberts, Psychiatrist, provided a report dated 13 April 2013 at the request of the Commission and gave evidence at the hearing. He drew attention to the letter dated 25 October 2001 from Dr AK Marinos, Mr Prior’s general practitioner, to DSC Crocker. Dr Marinos noted that Mr Prior admitted to being slightly depressed when he saw him on 1 March 2001 and thought when he saw him again on 14 March 2001 that Mr Prior was suffering from “a mild depression”. Dr Marinos prescribed Zoloft for Mr Prior but Mr Prior told him at a subsequent consultation for an unrelated ear complaint that he only took one Zoloft tablet and threw the rest away because he made him feel weird. Dr Marinos said his last consultation with Mr Prior on 24 September 2001 was for a continuing ear problem. Dr Roberts noted that Dr Marinos did not record any depressive symptoms on Mr Prior’s last two visits. Dr Roberts appears to have interpreted this as meaning there was no evidence of depression in the period immediately before Mr Prior’s death.
Dr Roberts told the Tribunal that neither depression nor Mr Prior’s skin condition was a factor at the time of his death. Dr Roberts considered that what may have been operative at that time was that Mr Prior was experiencing cognitive impairment and was distressed at the dementia suffered by an old friend. These matters were referred to by Mrs Prior in her interview with DSC Crocker on 20 October 2001 when she said her husband was possibly suffering from the early stages of dementia, although he was too proud to have sought any medical help. He was forgetful about things, something about which his son, Christopher Prior, in his interview with DSC Crocker on 10 November 2001, said his mother was concerned about. Mrs Prior told DSC Crocker that Mr Prior had been helping the wife of his friend who was suffering from severe dementia. In that context, two days before his suicide, Mr Prior had told Mrs Prior that there should be pills for euthanasia. However, when asked by DSC Crocker whether her husband was very upset about the friend’s condition, Mrs Crocker said “No”.
In answer to a question from the Tribunal, Dr Roberts said a substantial number of cases of suicide are due to chronic illness, sometimes with associated depression.
Dr Anthony Dinnen, Psychiatrist, provided a report dated 18 February 2013 at the request of Mrs Prior’s solicitors and gave evidence at the hearing. Referring to the possibility that being in the early stages of dementia was a factor in Mr Prior’s suicide, Dr Dinnen stated that, in his view, “the chronic dermatitis and the chronic pain caused by it was of greater import, so far as I can tell from reviewing the documentation”. Dr Dinnen concluded: “In my view his suicide was related to the dermatitis and the chronic pain which it caused.” When questioned at the hearing, Dr Dinnen, who had not seen Dr Roberts’ report, said the documentary evidence suggests that if Mr Prior was suffering from dementia, it was only mild and while it may have a factor in his suicide, chronic pain could be seen as a major factor among a number of factors.
The Tribunal is satisfied from the results of the biopsy of the 1996 skin sample and Dr Hoare’s evidence, that in 1996 Mr Prior was suffering from Pemphigus Erythematosus. We note the detailed log that Mr Prior kept of his skin condition and treatment in the period July 1995 to May 1997. We also note the report from Mr Prior’s treating Dermatologist, Dr Mark Healsmith, dated 8 February 2000, and his clinical notes from examining Mr Prior on that day. In a report dated 17 June 2011 for the purpose of these proceedings, Dr Healsmith stated:
I saw Mr. Prior on only one occasion on 8th February, 2000. At that time he gave me a history of inflammation of the skin affecting especially the back that had been troubling him since the middle of 1995. … The previous history of rosacea was an unrelated condition.
Mr Prior. had quite severe inflammation of the skin. He had been treating himself over the previous 5 years off and on quite assiduously, but the problem was still very active. He was plagued by a significant itch and burning discomfort.
…
I gave the provisional diagnosis of adult atopic dermatitis. This was very much a provisional diagnosis based on one look at the patient and one episode of listening to his story. My intention was to review Mr Prior under my therapy and to consider further investigation. The provisional diagnostic label that I gave therefore should not be overvalued. What this man had was late onset dermatitis of uncertain aetiology. Since the aetiology of this man’s dermatitis remains unknown, it is certainly possible that exposure to ionising radiation could have been of significance in the causation of his skin problem. The label ‘atopic dermatitis’ usually implies a hereditary component. Adult onset atopic dermatitis is in fact a diagnostic label that I rarely use these days and I doubt if I saw Mr. Prior for the first time now that I would have given him that label. Rather I would have said dermatitis of uncertain origin.
The ability of pruritus to very significantly disrupt the quality of life is often underestimated. Itch is often dismissed as a mild annoyance that can be ameliorated with a bit of a scratch. Significant pruritus is not that. It is an overwhelming and dolorous sensation that interferes with all aspects of life including sleep. Mr Prior was certainly suffering from this when I saw him and had been for some 5 years.
We are reasonably satisfied from the above evidence and the history of treatment for Mr Prior’s condition in the period leading up to his death that Mr Prior was suffering from Pemphigus Erythematosus at the time of death, notwithstanding that this was not something identified in the course of the post mortem. We are satisfied from Dr Hoare’s evidence that this condition could have been in remission at that time and not apparent on an external examination.
With regard to whether Mr Prior was suffering from depression at the time of his death, the Tribunal considers it possible, based on a review of the letter from Mr Prior’s treating general practitioner, Dr Marinos to DSC Crocker dated 25 October 2001, that Mr Prior may have been suffering from mild depression at the time of his death. We reject Dr Roberts’ opinion that the fact of Dr Marinos not having noted his having discussed with Mr Prior whether he was still suffering from depression on 24 September 2001 (the date of the last consultation) rules this out. This was obviously raised during the course of a consultation on 17 September 2001 when Mr Prior told Dr Marinos that he had only taken one Zoloft tablet (prescribed on 14 March 2001 when Dr Marinos thought that Mr Prior was suffering from a mild depression) and had thrown the rest away because the Zoloft tablet made him feel “weird”.
The Tribunal also notes Mrs Prior’s answers to questions from DSC Crocker in the interview on 20 October 2001 when she referred to the burning feeling her husband experienced on his back and said that it was “The burn, the dermatitis that upset him more than anything” and gave him constant pain.
In our view, while the evidence indicates that it is possible Mr Prior was suffering from a mild depression at the time of his death, we have concluded that there is insufficient evidence for us to be reasonably satisfied of this and, therefore, for us to be reasonably satisfied that he was suffering from a psychiatric disorder at this time. In so concluding, we note the evidence that Mr Prior was not a person who complained about his health.
the third issue: Was Mr Prior’s death defence-caused?
The first link in the hypothesis chain said to connect Mr Prior’s service with his death is the skin condition from which he suffered, one of the symptoms of which was pruritus which causes chronic pain - the ‘sub-hypothesis’: McKenna v Repatriation Commission (1999) 86 FCR 144, at [23]. The main hypothesis (discussed below) is that chronic pain was a major factor in Mr Prior’s death.
We have found the skin condition from which Mr Prior suffered at the time of death was Pemphigus Erythematosus, a disease for which there is no SoP. Where there is no SoP for a disease, the approach to be adopted when considering the connection between the disease and service is that set out by the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 (Bushell). The Tribunal must determine whether a reasonable hypothesis exists linking the death or disease with the circumstances of the veteran’s service. The material before the Tribunal will raise a reasonable hypothesis if the material points to some fact or facts (‘the raised facts’) which support the hypothesis, and the hypothesis can be regarded as reasonable if the raised facts are true.
In Bushell, Mason CJ, Deane and McHugh JJ said, at 414-415:
… the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge. Conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable.
In Byrnes v Repatriation Commission (1993) 177 CLR 564, at 571, the High Court noted that “the hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable”. Where the Tribunal finds the hypothesis to be reasonable, the Tribunal must determine that the death or disease was defence-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination (s 120(2) of the Act).
In Mr Prior’s case, the diagnosis of Pemphigus Erythematosus was made by an eminent specialist in the field of dermatology, Dr Hoare. His evidence was that there is a reasonable hypothesis connecting Mr Prior’s skin condition with the circumstances of his service. Dr Lobel appeared to accept that Pemphigus Erythematosus might be the correct diagnosis for Mr Prior’s skin condition although he said there is no academic record of Pemphigus Erythematosus in persons exposed to low level whole body radiation and no record of symptoms of the condition appearing 40 years after the exposure.
With regard to other specialist evidence, in his report dated 17 June 2011, Dr Healsmith, Dermatologist, said “it is certainly possible that exposure to ionising radiation could have been of significance in the causation of his skin problem”. In a statement dated 26 July 2010, Surgeon Rear Admiral BT Treloar (Rtd) (now deceased) said the pain, acute pruritus and general discomforture caused by Mr Prior’s skin condition was due to his exposure to ionising radiation at the Monte Bello Islands on 16 May 1956.
In our view, the material before the Tribunal raises a reasonable hypothesis pointing to a connection between Mr Prior’s exposure to ionising radiation and the chronic pain which was a major factor in his death. While there is some professional disagreement about the level of ionising radiation required to cause Pemphigus Erythematosus and the time period within which clinical onset of the condition occurs, the hypothesis is not obviously fanciful or untenable. Thus, we find the hypothesis to be reasonable. We are also not satisfied, beyond reasonable doubt, on the evidence before us, discussed above, that there is no sufficient ground for making that determination. We therefore find that there was a connection between Mr Prior’s exposure to ionising radiation and his skin condition which caused chronic pain.
Turning to the main hypothesis that chronic pain was a major factor in Mr Prior’s death requires that the Tribunal follow the four steps prescribed by the Full Federal Court in Deledio.
Step One
The first step requires that the Tribunal consider all the material before it and determine:
(a)whether the material points to some fact(s) (the raised facts) which support a hypothesis connecting the disease with the circumstances of the operational service; and
(b)whether that hypothesis can be regarded as reasonable if the raised facts are true.
As stated above, the Tribunal is reasonably satisfied that Mr Prior rendered BNTDS and was suffering from Pemphigus Erythematosus at the time of his death by carbon monoxide poisoning. The material on which the Claimant relies is that during the course of his service on 16 May 1956, the Neptune piloted by Mr Prior flew through the nuclear cloud resulting from the nuclear detonation and was, as a result, exposed to ionising radiation. The Claimant contends that this was the cause of the severe skin condition causing chronic pain and, in turn depression, from which Mr Prior was suffering at the time of his death.
The Tribunal is satisfied that the material presented – including in particular the medical opinion (Dr Hoare, Dr Healsmith) – points to the raised facts - that the condition described by the Claimant as severe dermatitis, but which has been subsequently diagnosed by Dr Hoare as Pemphigus Erythematosus, could be caused by ionising radiation and that a symptom of this condition is ‘pruritus’ that can give rise to chronic pain which was suffered by Mr Prior and was a major factor leading to his committing suicide. The Tribunal is also satisfied that if the raised facts are true, the hypothesis can be regarded as reasonable.
Step Two
The second step requires the Tribunal to ascertain whether there is a relevant Statement of Principles (SoP). There is no dispute that relevant in this case is the SoP concerning Suicide and Attempted Suicide, No 11 of 2010 (SoP No 11).
Step Three
The third step requires the Tribunal to determine whether, in its opinion, the hypothesis is reasonable, meaning is it consistent with the ‘template’ found in the SoP No 11? Clause 5 requires relevantly, that “at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person”. In this case, the Claimant relies on factors 6(b) and 6(n). Clause 6 of SoP No 11 states relevantly:
6. The factor that must as a minimum exist before it can be said that a
reasonable hypothesis has been raised connecting suicide or attempted
suicide or death from attempted suicide with the circumstances of a
person’s relevant service is:
…
(b) having a psychiatric disorder as specified at the time of the
suicide or the attempted suicide; or
…
(n) having chronic pain of at least three months duration at the time
of the suicide or the attempted suicide; or
…
‘Psychiatric disorder as specified’ is defined in clause 9 to include a ‘depressive disorder’. ‘Chronic pain’ is defined in clause 9 as meaning:
(a) continuous;
(b) almost continuous; or
(c) frequent, severe, intermittent pain,
which may or may not be ameliorated by analgesic medication and is of
a level to cause interference with usual work or leisure activities or
activities of daily living. This definition excludes normal, long-term
healing processes associated with acute injury or surgical repair;
As noted above at paragraph 11, referring to the Full Federal Court decision in Repatriation Commission v Knight, the two discrete issues which the Tribunal must consider are, first, does the material before the Tribunal point to the factor relied on, and, second, does the material also point to that factor being related to the member’s service (s 196B(14))?
Turning first to factor 6(b), as stated above, the Tribunal is not reasonably satisfied that Mr Prior suffered from a depressive disorder at the time of his death and thus the Tribunal determines that the Claimant’s hypothesis relying on this factor cannot succeed.
With regard to factor 6(n), the Tribunal is satisfied that the material before the Tribunal points to this factor being satisfied, in so far as the evidence relied upon by the Claimant indicates that Mr Prior had been suffering chronic pain that was frequent, severe, but intermittent in nature and of at least three months duration. The medical evidence of Dr Healsmith and Dr Hoare points to this, as do the answers given by Mrs Prior to questions from DSC Crocker in relation to her husband’s death. As to the second of the discrete issues, the Tribunal is satisfied that the medical evidence from Dr Healsmith and Dr Hoare points to ionising radiation being a possible cause of Pemphigus Erythematosus, and the evidence in relation to Mr Prior’s service in Operation Mosaic on 16 May 1956 points to his suffering from this condition being attributable to the ionising radiation to which he may have been exposed during his BNTDS.
The Tribunal is therefore satisfied that the hypothesis raised, relying on factor 6(n) of SoP No 11, is reasonable.
Step Four
Step Four requires if the hypothesis is reasonable, the Tribunal must be satisfied beyond reasonable doubt that the incapacity did not arise from the war-caused disease. This is the stage at which any fact finding must be made. In this case, the paucity of evidence has made our task a difficult one. There is clear evidence that Mr Prior was the pilot of a Neptune aircraft flying safety patrols in the vicinity of the Monte Bello Islands on the day that a British nuclear device was detonated as part of Operation Mosaic on 16 May 1956. The Neptune aircraft was unsealed and the air inside the aircraft could have been contaminated as a result of the aircraft passing through the nuclear cloud resulting from the detonation. If Mr Prior was exposed to this contamination – namely the ionising radiation – this could have resulted in Mr Prior developing Pemphigus Erythematosus a symptom of which is pruritus which causes chronic pain. Relying on the evidence of Dr Healsmith, Dr Hoare and Dr Dinnen (and see also the statement by Surgeon Rear Admiral BT Treloar (Rtd), now deceased, dated 26 July 2010), we are satisfied that chronic pain was a factor in Mr Prior’s suicide.
We have therefore concluded that the evidence does not establish beyond reasonable doubt that Mr Prior’s death did not arise from the chronic pain from which he suffered. Step Four is therefore satisfied and the Tribunal concludes that Mr Prior’s death was defence-caused.
Decision
The decision under review is affirmed.
I certify that the preceding seventy three (seventy three) paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President
Dr M Couch, Member.
...........................[SGD]..................................
Associate
Dated 24 September 2013
Date(s) of hearing 22-23 July 2013 Date final submissions received 23 July 2013 Counsel for the Applicant Mr T Saunders Solicitors for the Applicant Kemp & Co Lawyers Advocate for the Respondent Ms L Buchanan, solicitor Solicitors for the Respondent Australian Government Solicitor
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