Repatriation Commission v Flynn
[2000] FCA 643
•17 MAY 2000
FEDERAL COURT OF AUSTRALIA
Repatriation Commission v Flynn [2000] FCA 643
DEFENCE AND WAR- veterans’ entitlements - war widow’s pension - whether certain material was excluded or ignored by the Administrative Appeals Tribunal - whether the material before the Administrative Appeals Tribunal pointed to the reasonable hypothesis.
Veterans’ Entitlements Act 1986(Cth) s 120
Bushell v Repatriation Commission (1992) 175 CLR 408 Appl
Repatriation Commission v Owens (1996) 70 ALJR 904 cited
Repatriation Commission v Bey (1997) 79 FCR 364 Foll
Repatriation Commission v Webb (1998) 51 ALD 575 Cited
Byrnes v Repatriation Commission (1993) 177 CLR 564 Appl
Repatriation Commission v Keeley [1999] FCA 532 Foll
East v Repatriation Commission (1987) 16 FCR 517 ApprREPATRIATION COMMISSION v JUNE VIOLA FLYNN
QG 32 OF 1998REPATRIATION COMMISSION v THERESA CONNOLLY
QG 33 OF 1998COOPER J
BRISBANE
17 MAY 2000
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QG32 OF 1998
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
CONSTITUTED BY DEPUTY PRESIDENT BREEN, DR J B MORLEY
AND PROFESSOR B A SMITHURST
BETWEEN:
REPATRIATION COMMISSION
APPLICANTAND:
JUNE VIOLA FLYNN
RESPONDENT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QG33 OF 1998
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
CONSTITUTED BY DEPUTY PRESIDENT BREEN, DR J B MORLEY
AND PROFESSOR B A SMITHURST
BETWEEN:
REPATRIATION COMMISSION
APPLICANTAND:
THERESA CONNOLLY
RESPONDENT
JUDGE:
COOPER J
DATE OF ORDER:
17 MAY 2000
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.Each application is dismissed.
2.The applicant pay June Viola Flynn her costs of and incidental to the application, including reserved costs, if any, to be taxed if not agreed.
3.The applicant pay Theresa Connolly her costs of and incidental to the application, including reserved costs, if any, to be taxed if not agreed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QG32 OF 1998
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
CONSTITUTED BY DEPUTY PRESIDENT BREEN, DR J B MORLEY
AND PROFESSOR B A SMITHURST
BETWEEN:
REPATRIATION COMMISSION
APPLICANTAND:
JUNE VIOLA FLYNN
RESPONDENT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
QG33 OF 1998
ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL
CONSTITUTED BY DEPUTY PRESIDENT BREEN, DR J B MORLEY
AND PROFESSOR B A SMITHURST
BETWEEN:
REPATRIATION COMMISSION
APPLICANTAND:
THERESA CONNOLLY
RESPONDENT
JUDGE:
COOPER J
DATE:
17 MAY 2000
PLACE:
BRISBANE
REASONS FOR JUDGMENT
Background
This is an appeal from a decision of the Administrative Appeals Tribunal (“the AAT”) constituted by Deputy President Breen, Dr J B Morley and Professor B A Smithurst. The AAT determined that Theresa Connolly and June Flynn were entitled to war widow’s pensions under s 14 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) consequent upon the death of Allen Connolly and Mervyn Flynn respectively.
Mr Connolly and Mr Flynn each served in the British Commonwealth Occupation Forces (“the BCOF”) in the Hiroshima region following the Japanese surrender after atomic bombs were dropped on Hiroshima and Nagasaki in August 1945. The AAT found that both men died from solid cancers. In the case of Mr Connolly it was cancer of the pancreas. In the case of Mr Flynn it was a non-Hodgkin’s lymphoma.
The AAT found that their service in the BCOF was “operational service” within the meaning of s 6 of the Act and that the death of each veteran was a “war-caused death” within the meaning of s 8 of the Act. The AAT found that the two veterans were exposed to low radiation doses while rendering operational service in Japan. It found that the radiation doses were greater than normal background radiation although appreciably less than 5 mSv. The AAT was also satisfied that there was a reasonable hypothesis connecting the veterans’ deaths from the particular cancers to their exposure to radiation doses in Japan when engaged in operational service in the BCOF.
There was a divergence of medical and scientific evidence before the AAT as to whether exposure to radiation at the levels at which the veterans were exposed could, as a matter of reasonable hypothesis, have caused the deaths of the veterans within the meaning of s 8 of the Act. In coming to the conclusion which it did, the AAT applied the linear no-threshold hypothesis as applicable to low dose exposure to radiation.
The AAT accepted the evidence of Dr Donald Higson, a Risk Assessment Consultant in Nuclear Safety and Secretary of the Australian Radiation Protection Society as to the meaning and content of the linear no-threshold hypothesis.
It said :
“46. This has led to the formulation of the so-called ‘linear no-threshold hypothesis’. This was summarised clearly by Dr Higson in Exhibit 15:
‘The estimation of risks at low levels of radiation ... involves an assumption that all doses of radiation, even extremely low doses, have an associated risk which increases with increase in dose. It follows from this assumption that there is a risk of cancer even from the natural background radiation to which everyone is exposed continuously, and an additional risk from any additional exposure.
Various forms have been postulated for the relationship between risk and dose, the simplest being a linear extrapolation down to zero dose with no threshold. This relationship is often called the ‘linear no-dose threshold hypothesis’ and is essentially the approach recommended by the ICRP ... It is important to stress that this is an hypothesis, but it is widely accepted and is central to the practice of radiation protection ...
It is not possible to determine whether the assumption of a continuous and positive relationship between risks and dose, without a threshold, is true or false. However, the NRPB has concluded that “for radiation protection purposes, there is little basis for arguing that low radiation doses have no associated cancer risk...” ’ ”.
The NRPB referred to by Dr Higson is the National Radiological Protection Board and the ICRP is the International Commission on Radiological Protection.
The NRPB in 1995 published a document which summarised the concept of low dose initiated radiation-induced cancer. It concluded that :
“ ... the weight of evidence in respect of the induction of the majority of common human tumours falls decisively in favour of the thesis that, at low doses and low dose rates, tumorogenic risk rises as a simply function of dose without a low dose interval within which risk may be discounted”.
The AAT found that it was this conclusion of the NRPB which had led to the so-called linear no-threshold hypothesis.
Medical evidence before the AAT was given by Dr Higson, Dr Josephine Wiseman and Professor Peter Ilbery.
Dr Higson, in respect of both veterans, stated his conclusion as the relationship between their operational service and the cancers from which they died as follows :
“It is possible that small doses of ionising radiation, such as those presumed to have been incurred by Mr Connolly and Mr Flynn during their military service, can cause pancreatic cancer or non-Hodgkin’s lymphoma”.
Dr Wiseman is Senior Physician in Nuclear Medicine at the Royal North Shore Hospital in Sydney, New South Wales. In relation to Mr Connolly, she regarded it as “ ... a reasonable case that his carcinoma of the pancreas was service related”. She regarded it as “a small but definite chance” that Mr Flynn’s non-Hodgkin’s lymphoma could have been “associated with internal contamination from radioactive elements” in the Hiroshima area during Mr Flynn’s service with the BCOF.
Professor Ilbery is a consultant radiologist who has previously held appointments as Medical Director of the Cancer Institute, Melbourne, Victoria, Assistant Director-General of the Commonwealth Department of Health and Chairman of the NH and MRC Carcinogenic Substances Standing Committee.
Professor Ilbery, in relation to cancer of the pancreas, expressed the opinion that “no significant radiation effect was found for pancreas” and that “... At present, the total body of data seems equivocal and a link between radiation and pancreatic cancer has not been established.”
In relation to non-Hodgkin’s lymphoma, Professor Ilbery expressed the opinion that “Even if NHL (non-Hodgkin’s lymphoma) was radiogenic ... the risk from exposure at the level attributable to this veteran [Flynn] is minuscule”.
The AAT found that all necessary elements of the entitlement of Mrs Connolly and Mrs Flynn to a war widow’s pension were satisfied and remitted the matter to the Repatriation Commission with a direction that in each case the applicant was entitled to the war widow’s pension in terms of the respective applications.
The Appeal
The applicant Commission appealed from the decision of the AAT to this Court. The grounds of appeal are :
“(a)Contrary to the requirements of subsection 120 (3) of the Act, the Tribunal improperly excluded from its consideration, when evaluating the hypothesis said to connect the veteran’s death with the circumstances of his service, material that was relevant to that hypothesis, in particular-
(i)material showing no increased risk of cancers from low radiation exposure;
(ii)material showing no increased risk of non-Hodgkin’s lymphoma from high radiation exposure; and
[(ii)material showing no increased risk of cancer of the pancreas from high radiation exposure; and] [QG33 of 1998]
(iii)the evidence of Professor Ilbery, an expert witness who was eminent in the relevant field.
(b)Contrary to the requirements of subsection 120(3) of the Act, the Tribunal treated as material pointing to the hypothesis, said to connect the veteran’s death with the circumstances of his service, material that was incapable of pointing to that hypothesis.
(c)The Tribunal improperly based its conclusion that a reasonable hypothesis was raised connecting the veteran’s death and the circumstances of his service on an assumption that was not pointed to by the material before the Tribunal nor open as an inference from that material.
(d)The Tribunal treated as a reasonable hypothesis a possibility that was not pointed to by the material before the Tribunal but merely left open by the material before the Tribunal.”
On the hearing of the application for review, the applicant did not press ground (c).
Ground (a)
The applicant contends that the AAT confined its evaluation of the medical evidence to the linear no-threshold hypothesis, ignoring and excluding the contrary opinion of Professor Ilbery and the results of a report of the Radiation Effects Research Foundation (“the RERF”).
The RERF report was entitled “Studies of the Mortality of Atomic Bomb Survivors. Report 12, Part 1. Cancer: 1950 - 1990”. The report was part of a long term epidemiological project, a Life Span Study (“LSS”) of survivors of the atomic bombings of Hiroshima and Nagasaki.
The applicant submits that the AAT was required to form its opinion on the whole of the evidence and be satisfied on the whole of the material that the hypothesis is reasonable: Bushell v Repatriation Commission (1992) 175 CLR 408 at 415; Repatriation Commission v Owens (1996) 70 ALJR 904; Repatriation Commission v Bey (1997) 79 FCR 364 at 366 - 367; Repatriation Commission v Webb (1998) 51 ALD 575.
The applicant submits that the AAT ignored or excluded the evidence of Professor Ilbery and the RERF study. It submits that the existence of such material, if the AAT had regard to it, would lead to a conclusion that the hypothesis advanced was not the dominant hypothesis in the circumstances of the case and thus not the reasonable hypothesis.
The respondents submit that the applicant is attempting to obtain a merits review to support a case that was pressed in the AAT, considered by it and not found persuasive for the reasons given by the AAT.
In Bushell v Repatriation Commission, Mason CJ, Deane and McHugh JJ said (at 415) :
“... This does not mean, however, that in performing it functions under s 120(3) the Commission can not have regard to the medical or scientific material which is opposed to the material which supports the veteran’s claim. Indeed, the Commission is bound to have regard to the opposing material for the purpose of examining the validity of the reasoning which supports the claim that there is a connexion between the incapacity or death and the service of a veteran. But it is vital that the Commission keep in mind that that hypothesis may still be reasonable although it is unproved and opposed to the weight of informed opinion.”
The AAT did give consideration to the evidence of Professor Ilbery and the RERF report. It said in its reasons :
“17. Of these reference documents, Exhibit 29 warrants particular mention. It is the latest report from the Radiation Effects Research Foundation (RERF), formerly the Atomic Bomb Casualty Commission. It has been conducting a long term epidemiological project, a so-called Life Span Study (LSS) of survivors of the atomic bombings of Hiroshima and Nagasaki. It has examined the excess cancer deaths of such survivors since 1950 and this document extends the RERF’s preceding report by the five years 1986-1990. ...
... The findings of interest to the Tribunal that are contained in this report include:
●during 1950-1990 there have been 3086 and 4741 cancer deaths for the less than, and greater than, 5 mSv groups respectively, totalling 7,827 cancer deaths, of which 7,578 were due to solid cancers (ie. non-leukemic);
●Of these, approximately 420 were excess cancer deaths (ie. those presumed to be due to residual radiation effects of atomic bombings) of which about 85 were due to leukaemia, ie. about 334 excess deaths were caused by solid cancers;
●for solid cancers, about 25% of the excess deaths from cancer in 1950-1990 occurred during the past five years;
●whereas excess deaths for leukaemia occurred mainly in the first 15 years after exposure, the solid cancers excess risk is apparently more of a life-long raising of the natural age-specific cancer risk; and
●the excessive lifetime risk per sievert for solid cancers is higher for those exposed at younger ages, and for those exposed at age 30 years it is estimated at 0.10 for males, whereas for those exposed at age 50 this reduces to about one-third of the risk of exposure at the age of 30 years.
18. The importance of this long-term study is underscored by the fact that the International Commission on Radiological Protection (ICRP) ‘…has estimated the probability of a fatal cancer (being caused by radiation) by relying mainly on studies of Japanese survivors of the atomic bombs’ and their evaluation by the United Nations Scientific Committee on the Effects of Atomic Radiation (UNSCEAR) and the Committee on the Biological Effects of Ionizing Radiation (BEIR) (Exhibit 18, page 69).”
The AAT continued with :
“20. There was general agreement that the two veterans were exposed to only low radiation doses. Professor Ilbery cited estimates derived from the Atomic Bomb Casualty Commission in 1962 and, more recently, from a Dr Parry of the Australian Nuclear Science and Technology Organisation, that Australia BCOF personnel arriving in Japan in February 1946, if they hypothetically had remained near the Hiroshima bomb hypocentre for an infinite time, they would have been exposed to a total dose from the residual radiation of no more than 7 mSv. He proposed ‘a more realistic’ estimate that if the individual stood within 1000 metres of the hypocentre for an infinite amount of time, the residual radiation would have dosed each veteran by approximately 1 mSv. He compared this with the natural background radiation dose in Australia, and in most of the world, of 1-2 mSv annually (Exhibit 26 page 3).
...22. Moreover, in the latest RERF report (Exhibit 29) the authors have stated that since their previous report (LSS 85) they have extended their dose estimating (DS86) system to include another 7037 subjects from Hiroshima to take in additional estimates of such factors as γ-ray and neutron exposures.”
The AAT continued :
“35. The Tribunal first examines the limitations of epidemiological studies in low dose radiocarcinogenity. Professor Ilbery advised the Tribunal that he had just returned from a conference at Stratford in England on ‘Health Effects of Small Doses of Radiation’ at which the ‘consensus’ was that the RERF LSS project is still ‘the definitive study’ on this problem of small or low dose effects (Exhibit 27 page 2). ...
...37. The Tribunal now turns to examine such assistance that it may receive from the latest RERF report of its epidemiological studies of the Hiroshima and Nagasaki atomic bomb survivors (Exhibit 29)”.
The AAT refers to calculations done by Dr Higson of the relative probabilities in relation to the total risk of cancer from exposure to low dose radiation and Professor Ilbery’s response to the calculation. It said :
“47. Dr Higson (Exhibit 15) referred to ICRP Publication 60 (Exhibit 18) as not providing any particular risk estimate for carcinoma of the pancreas, but he presented his calculation of the relative probabilities in relation to the total risk of cancer :
‘For Australian men in their mid-60’s the rate of mortality from all malignant neoplasms is of the order of one in a hundred (10²) per year. On the basis of ICRP recommendations, the average incremental risk to an individual member of a group exposed to 1 mSv is expected to be 5 x 105, or one chance in 20,000. Assuming that this incremental risk is spread over a period of 25-50 years, after a latency period of 5-10 years following exposure, the average rate would be between 1 x 106 per year and 2 x 106 per year. Hence, on this basis, the probability that a fatal cancer has been caused by the exposure to radiation would be about 1 x 104 to 2 x 104.. The probability could not be zero on this basis.’ (page 7).
These figures were not challenged by Professor Ilbery (Exhibit 28).”
The AAT next refers to a lengthy section of cross-examination of Professor Ilbery where he acknowledges that the hypothesis advanced by the two applicants was not contrary to known scientific fact and that it was open to argument. Professor Ilbery stated that his disagreement with the hypothesis was in the area of reasonableness because it would require more human or animal experimental data to support it.
The requirements of Professor Ilbery to sustain an opinion that the hypothesis was reasonable appear in the following cross-examination :
“So before you would consider this theory, this hypothesis to be a reasonable one, you would require human or animal experimental data in support of it. Is that correct?---Yes.
Irrespective - sorry. Is there anything else that might satisfy the reasonableness of it, in your mind, besides such human or animal experimental data?---Well what are we trying to prove - we are trying to prove that the radiations can produce the neoplastic process is that right?
Well, who says that we are trying to prove anything?---Well, are we trying to link the isotopes with a neoplastic process?
The applicants are advancing a theory which you accept as an hypothesis to the effects that their exposure to radiation at Hiroshima after World War 2 has played a part in their subsequent death from cancer. Now, you have indicated for you to be satisfied of the reasonableness of that hypothesis you would require other human or animal experimental data. My question was, is there anything else that may satisfy the reasonableness of it in addition to human or animal experimental data?---Well, if you are asking my opinion I don’t see that there can be.
All right. Now, do you say human or experimental data or human and experimental data?---Well, animal experimental data doesn’t necessarily carry over to humans.
So you would require both?---I think it would be reasonable to accept animal experimental data with the proviso that it may not carry over into the human situation.
So before you would accept the applicant’s hypothesis to be a reasonable one, you would require animal experimental data with that additional proviso?---I think you could have a hypothesis from animal experimental data.”
The AAT concluded that the requirements of Professor Ilbery to sustain the reasonableness of the hypothesis were different and more onerous than the statutory requirements, which the AAT was to apply. This appears from the following which appears after the extract from the cross-examination of Professor Ilbery reproduced in the AAT’s reasons :
“50. The Tribunal recognises that Professor Ilbery, a Scientist of eminent reputation and vast experience in this discipline, is interpreting the term ‘reasonable hypothesis’, with the far more binding and rigorous scientific standard of proof, than that which this Tribunal must address.”
The AAT set out the findings of the RERF report and the data in paragraphs 17, 38 and 39 of its reasons. The AAT then continues :
“40. From these figures, and bearing in mind that 25% of the deaths from solid cancers have occurred in the latest five year period (paragraph 17), the Tribunal concludes that the RERF Life Span Study will have to continue for one or more five year periods before enough males have died from cancer of the pancreas or non-Hodgkin’s lymphoma to allow any inferences to be drawn of substantive value to the Tribunal’s deliberations on these applicants’ claims.
41. Accordingly, it appears to the Tribunal that :
·these two veterans, who were aged then in their early twenties, were in a higher (younger) age risk group;
·of 7,578 deaths from solid cancers there have been only 334 excess deaths (4.4%), male and female, for all grades of radiation exposure dose, up to greater than 2,000 mSv;
·for radiation doses of 5-10 mSv there is a small Excess Risk Rate of death from cancer and it is of a similar extent to that of radiation doses of up to 100 mSv;
·for doses of less than 5 mSv, which is the dose range of concern to the Tribunal (paragraph 29), this study provides no information of assistance to the Tribunal; and
·the numbers of deaths recorded in this study from pancreatic cancer and non-Hodgkin’s lymphoma were too small to allow any conclusions about their possible induction by residual radiation from the atomic bomb explosions.
42. In Exhibit 22, Professor Ilbery, after referring to the ‘very real difficulties’ in obtaining information about low dose radiation carcinogenesis, went on to say :
‘Nor is help readily forthcoming by turning to experimental radiobiology as logistical difficulties are encountered with the hordes of animals together with the elaborate infrastructure necessary to assemble the required data. Further the information obtained in animals would not necessarily carry over to man’ (page 4).
43. The potential tumorogenic effects of low dose radiation, which are designated ‘the stochastic effects’, are described in the 1990 Recommendations of the International Commission on Radiological Protection (ICRP) as follows :
‘Stochastic effects may result when an irradiated cell is modified rather than killed. Modified somatic cells may subsequently, after a prolonged delay, develop into a cancer. There are repair and defence mechanisms that make this a very improbable outcome. Nevertheless, the probability of a cancer resulting from radiation increases with increments of dose, probably with no threshold. ...’ (Exhibit 18 page 69).”
And concludes :
“54. Although the RERF study has been generally most informative to the Tribunal, it can be of no assistance to it in its deliberations on these applicants’ claims, for two reasons:
(1)the Tribunal has had to take into account that, to date, in contrast to the more common cancers such as of the lung, liver or stomach, there is no evidence that individuals who were living in the Hiroshima area at the time that the two veterans served there were at an increased risk of developing cancer of the pancreas or non-Hodgkin’s lymphoma. As observed in paragraph 40, as this RERF study continues to proceed, there eventually may, or may not, be a sufficient number of male deaths to occur from either or both of these cancers, then to allow conclusions to be drawn about them. However, there are no present means available by which the Tribunal can anticipate the probabilities, if any, of excess deaths from either cancer being shown.
(2)The Tribunal has concluded (paragraph 41) that the RERF study does not provide any assisting information about the effects of radiation doses of appreciably less than 5 mSv. In this regard, the Tribunal’s experience is as observed by Dr Higson (paragraph 36), that epidemiology is not helpful in determining a link between radiation and cancer at low doses.”
The AAT treated the conclusions to be drawn from the RERF study at the present time as having a neutral impact on the issues before the AAT.
There is no substance in the submission that the AAT failed to consider the whole of the medical and scientific material or that it excluded or ignored the evidence of Professor Ilbery and the RERF study.
The AAT had regard to the conflicting medical and scientific material before it. It evaluated all medical and scientific opinion, including the evidence of Professor Ilbery, and the contents of the RERF study against the whole body of other material before it, as it was obliged to do. It gave reasons for preferring other material, rather than the opinion of Professor Ilbery and explained its use of the RERF study. In the way that it dealt with the medical and scientific material, there is no demonstrable error of law as contended for by the applicant.
Grounds (b) and (d)
The standard of proof to be applied where a claim for a pension is made under Part II of the Act is provided for in s 120. That section provides :
“120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational services rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case maybe, unless it is satisfied, beyond a reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
...(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case maybe, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
(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.
(5)Nothing in this provisions of this section, or in the other provision of this Act, shall entitle the Commission to presume that :
(a)an injury suffered by a person is a war-caused injury or a defence-caused injury;
(b)a disease contracted by a person is a war-caused disease or a defence-caused disease;
(c)the death of a person is war-caused or defence-caused; or
(d)a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6)Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on :
(a)a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b)the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.”
As each of the applications for a pension was made before 1 June 1994, s 120A of the Act has no relevant operation in respect of these applications.
The steps to be taken in the application of s 120 of the Act were explained in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571, where the Court said :
“The position maybe summarized as follows: (1) First, sub-s. (3) of s. 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran’s injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s. (1) of s. 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.”
The meaning of “hypothesis” in the context of s 120 was discussed in Repatriation Commission v Keeley [1999] FCA 532 per Lee and Cooper JJ at paras 11 - 12. Their Honours said :
“11 Section 120(3) defines the scope of operation of s 120(1) by providing that the Commission must be satisfied beyond reasonable doubt ‘that there is no sufficient ground for determining’ that the death of a veteran was ‘war-caused’ if, in the opinion of the Commission, the material before it does not raise a reasonable hypothesis ‘connecting’ the death with ‘the circumstances of the particular service’ rendered by the veteran. A reasonable hypothesis which ‘connects’ the death of a veteran with ‘the circumstances of the particular service’ of the veteran may be taken to be a theory, proposition, suggestion or postulation which suggests reasonably, although without proof, that some event in, or aspect of, the service rendered by the veteran may be linked to the death of the veteran. (See: Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571.) ‘Hypothesis’, as used in s 120(3), has the meaning attributed to the word in The Shorter Oxford English Dictionary 3rd ed. 1973 at 1010:
‘... A proposition or principle put forth or stated merely as a basis for reasoning or argument, or as a premiss from which to draw a conclusion. ... A supposition or conjecture put forth to account for known facts; esp. in the sciences, a provisional supposition which accounts for known facts, and serves as a starting-point for further investigation by which it may be proved or disproved. ... A supposition in general; something assumed to be true without proof; an assumption ... Hence spec. A mere assumption or guess ...’
12 A hypothesis is based upon assumptions. The reasonableness of the hypothesis depends upon the reasonableness of the assumptions and of reliance upon those assumptions and known facts to make a connection between the death and the circumstances of service. (See: Bushell v Repatriation Commission (1992) 175 CLR 408 at 414.) ...”
The applicant relies upon the formulation of “reasonable hypothesis” adopted in Repatriation Commission v Bey at 372 - 373 :
“Any doubt that attends the status of East as a correct exposition of the law relating to s 120(3) should be dispelled. This Court re-states the position established by East, Bushell and Byrnes. A ‘reasonable hypothesis’ involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities. That understanding of the expression gives force to the word ‘reasonable’, is strongly supported by the history of the relevant provisions, and accords with the intention appearing in the Minister’s second reading speech and with authority.”
The applicant submits that :
(a)the AAT relied upon the RERF report and the liner no-threshold hypothesis as material pointing to the hypothesis that the death of each veteran from cancer resulted from exposure to radiation from the atomic bomb at Hiroshima when that material was incapable of supporting such an hypothesis.
(b)the AAT treated as a reasonable hypothesis what the material left open as a mere possibility and thereby committed an error of law of the type identified in Bey.
The conclusions of the AAT on the medical questions were :
“52. The Tribunal concludes that :
(a)the applicants’ claims are based on an hypothesis which is not fanciful, because it is derived from the linear no-threshold hypothesis invoking so-called ‘stochastic effects’ of low dose radiation which is currently accepted universally by all members of the scientific community working in this field;
(b)the hypothesis is not contrary to known scientific fact, as agreed by all medical witnesses;
(c)there is an apparent ‘pointing toward’ the hypothesis by the findings to date of the long-term RERF Study of Japanese atomic bomb survivors, that by now there have been excess deaths apparently caused by radiation of the more common cancers, notably lung, liver and stomach.
53. The Tribunal’s ability to assess these veterans’ risks of developing their particular cancers from their occupational service has been greatly limited by two main factors:
·the imprecisions and uncertainties of the measurements of radiation doses in the Hiroshima region; and
·the low doses of radiation to which the veterans appear to have been exposed.
However, the Tribunal estimates that, for both veterans, the radiation doses to which they were exposed were appreciably less than 5 mSv (paragraph 29); this also includes for Mr Connolly the additional dose that he received from his numerous chest x-rays (paragraph 28).”
The AAT continued :
“55. The Tribunal acknowledges Dr Higson’s attempt to estimate the veterans’ general cancer risks (paragraph 47). However, this also does not assist the Tribunal further because it does not examine the two specific cancers of these veterans.
56. This means that the only medical scientific evidence to which the Tribunal has any recourse is the linear no-threshold hypothesis.”
As appears from paragraph 54 of the AAT’s reasons, which is set out above, the AAT concluded the RERF study did not provide it with material it could rely upon in respect of cancer of the pancreas and non-Hodgkin’s lymphoma for the reasons it stated.
The AAT did not use the results of the RERF study as pointing to the hypothesis that the particular cancers from which the veterans died resulted from their exposure to low level radiation in the Hiroshima region. The AAT expressly disavowed its use for that purpose. What the AAT did was to regard the study as pointing toward the validity of the linear no-threshold hypothesis in respect of the more common cancers: para 52(c) of its reasons. It was of the opinion that it was necessary for the RERF to continue for a further one or more five year cycles to allow any inferences to be drawn as to the relationship between exposure to low levels of radiation at Hiroshima and cancer of the pancreas and non-Hodgkin’s lymphoma: para 40 of its reasons.
The AAT made its decision on the basis of the medical and scientific evidence which dealt with the linear no-threshold hypothesis. The conundrum which the AAT found to exist was whether it was entitled to assume that the linear no-threshold hypothesis is, in occurrence or existence, a fact within the principles stated in Byrnes v Repatriation Commission. The AAT resolved the conundrum as follows :
“62 In resolving this conundrum, the Tribunal has turned to the words of the Full Court of the Federal Court in East v Repatriation Commission (1987) 16 FCR 517, that for an hypothesis to be reasonable, as well as possessing some degree of acceptability or credibility, and as well as not being obviously fanciful, impossible, incredible or untenable, it must not be ‘ ... too remote or too tenuous’. In this respect, the Tribunal, being guided by the same judgment, finds that the linear no-threshold hypothesis, as it applies to the low radiation doses involved in these veterans’ cases, leaves the applicants’ hypothesis remote and/or tenuous to an extent but not to a point that justifies a finding that the applicants’ hypothesis is too remote and/or too tenuous (our emphasis). In making this finding we rely heavily on a passage in Exhibit 19 (see paragraph 44). The passage reads:
‘It is argued therefore that, for the majority of tumour types, a single mutational event in a critical gene in a single target cell in vivo can create the potential for neoplastic development. On this basis, a single radiation track (lowest dose and dose rate possible) traversing the nucleus of an appropriate target cell has a finite probability, albeit low, [our emphasis] of generating the specific damage that results in a tumour initiating mutation ...’
We also rely on the fact, established as it is by the evidence, that the linear no-threshold hypothesis is currently accepted universally by all members of the scientific community as justifying under the dogma of science the view that the hypothesis should assume the status of ‘a fact’ until proven otherwise. That acceptance by that community persuades the Tribunal that it must make the same assumption.”
The report which the AAT relied heavily upon was that the of NRPB published in 1995. The AAT found that it was consistent with the 1990 Recommendations of the ICRP, an extract of which report it cited in paragraph 43 of its reasons. The AAT also had the medical evidence of Drs Higson and Wiseman in support of the linear no-threshold hypothesis of radiation induced cancer. The evidence of Drs Higson and Wiseman was also in support of the hypothesis that the cancers which caused the death of the veterans were induced by exposure to low levels of radiation in the Hiroshima area during their eligible operational service with the BCOF.
In the passage cited above, in paragraph 62 of the AAT’s reasons, it recognised the distinction between a mere possibility (“too remote or too tenuous”) and something more which is reasonable, in that it is not too remote or too tenuous. In this case the AAT was satisfied that the linear no-threshold hypothesis gives the hypothesis advanced sufficient support. There is nothing to suggest in the reasons that the AAT misunderstood or misapplied the principles stated by the Full Court in East v Repatriation Commission (1987) 16 FCR 517 to which the AAT made specific reference.
Nor is there any basis to hold that there was no evidence to support the finding of the AAT that there was a substantial body of medical and scientific opinion which opined that the linear no-threshold hypothesis was the correct approach to be taken at this time to the question of inducement of cancer by exposure to radiation. Similarly, there was material open to the AAT that in the case of exposure to low level radiation, the hypothesis led to the conclusion that there was a finite probability, albeit low, of generating a tumour initiating mutation, from such exposure.
The body of medical and scientific opinion which subscribed to the linear no-threshold hypothesis and its application to the inducement of cancer by exposure to radiation, even at low levels of exposure, was a fact and one of the facts that the AAT was entitled to rely upon in coming to a conclusion that the hypothesis that the cancers from which the veterans died were induced from exposure to low level radiation in the Hiroshima area during operational service with the BCOF, was a reasonable hypothesis.
The AAT acknowledged that its decision was a question of judgment and that it fell at the margins of what constituted a reasonable hypothesis. However, the judgment was the AAT’s to make and not one for the Court. I am not persuaded that the judgment of the AAT was attended by error of law of the type contended for by the applicant.
Conclusion
The application is dismissed with costs.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper. Associate:
Dated: 17 May 2000
Counsel for the Applicant: Mr P Hanks QC with Ms E Ford Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondents: Mr D O’Gorman Solicitor for the Respondents: Gilshenan & Luton Date of Hearing: 18 August 1999 Date of Judgment: 17 May 2000
0
11
0