Repatriation Commission v Prestegar, Dorothy Irene
[1997] FCA 762
•14 AUGUST 1997
FEDERAL COURT OF AUSTRALIA
DEFENCE AND WAR - Veterans’ Entitlements - War-caused disease - Whether Administrative Appeals Tribunal correctly identified reasonable hypothesis from the raised facts - whether reasonable hypothesis disproved beyond reasonable doubt.
Veterans’ Entitlements Act 1986, ss 120(1) and (3)
Bushell v Repatriation Commission (1992) 175 CLR 408
Repatriation Commission v Owens (1996) 70 ALJR 904
Byrnes v Repatriation Commission (1993) 177 CLR 564
Woodman v Repatriation Commission (unreported, Northrop, Davies and Ryan JJ, 6 June 1997)
Repatriation Commission v Stares (1996) 60 FCR 594
REPATRIATION COMMISSION v DOROTHY IRENE PRESTEGAR
No. VG 92 of 1997
DAVIES, RYAN and HEEREY JJ
MELBOURNE
14 AUGUST 1997
IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VG 92 of 1997 ) GENERAL DIVISION )
ON APPEAL FROM A JUDGMENT OF A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: REPATRIATION COMMISSION
AppellantAND: DOROTHY IRENE PRESTEGAR
Respondent
CORAM: DAVIES, RYAN and HEEREY JJ PLACE: MELBOURNE DATE: 14 AUGUST 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
That the appeal be dismissed with costs, including reserved costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VG 92 of 1997 ) GENERAL DIVISION )
BETWEEN: REPATRIATION COMMISSION
ApplicantAND: DOROTHY IRENE PRESTEGAR
Respondent
CORAM: DAVIES, RYAN & HEEREY JJ PLACE: MELBOURNE DATE: 14 AUGUST 1997
REASONS FOR JUDGMENT
DAVIES J
I have had an opportunity to read the reasons for decision of Ryan and Heerey JJ. I agree with their Honours reasons and with the orders proposed but would add a few words of my own.
The issue in this appeal concerns the "reasonable hypothesis" required by s 120(3) of the Veterans' Entitlements Act 1986 (Cth) which provides, inter alia:-
"120.(1) ... the Commission shall determine that the ... death of the veteran was war-caused ... unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
(3) In applying subsection (1) ... in respect of the death of a person related to the service rendered by the person, the Commission shall be satisfied beyond reasonable doubt, that there is no sufficient ground for determining:
...
(c)that the death was war-caused ...
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 ... death with the circumstances of the particular service rendered by the person." (emphasis added)
In Bushell v Repatriation Commission (1992) 175 CLR 408, Mason CJ, Deane & McHugh JJ said at 414-50:-
"The material will raise a reasonable hypothesis within the meaning of s.120(3) if the material points to some fact or facts (`the raised facts') which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true.
...
... 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. As we have earlier pointed out, it is not the function of s.120(3) to require the Commission to choose between competing hypotheses or to determine whether one medical or scientific opinion is to be preferred to another. This does not mean, however, that in performing its functions under s.120(3) the Commission cannot 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." (emphasis added)
In the present case, the issue was the connection between the ingestion of benzene fumes during the deceased's war service and the development of his multiple myeloma, from which he died. The evidence as to a reasonable hypothesis was given
by Professor J. Bisby of the Clinical Health Department of the University of Melbourne. Professor Bisby is a specialist in the field and has, for many years, been engaged in the making of a long time study into the effect of petroleum products on workers in the petroleum industry. Professor Bisby said that he was currently the director of a study called "Health Watch" undertaken by the Melbourne University Department of Community Medicine. This study had been on foot for 15 years with a view to identifying any connection between benzene and leukemia, multiple myeloma and other blood cancers. Professor Bisby gave evidence that he had studied work exposures in more than 1500 factories in Australia.
Professor Bisby summarised in his evidence the likely exposure to benzene fumes which the deceased would have encountered, exposure which the Tribunal appeared to accept, and said:-
"... I concluded that his war time exposure did contribute to the risk that he developed myeloma several decades later and that was on the basis that he was exposed to war time fuels at levels which carried a risk of causing, triggering or making a contribution to the risk of developing myeloma and that was because he was exposed to benzene in motor spirit during war service. Benzene in war time gasoline was generally at a higher level than has existed since in terms of civilian use and that the working conditions under which he filled his motorcycle and used motor spirit with a high level of probability for cleaning parts and as a solvent would have created substantial exposures compared to exposures which are known to cause a risk for the development of cancers of the blood forming cells including multiple myeloma."
As to the level of exposure which would create a material risk, Professor Bisby said:-
"The national level for an occupational exposure in Australia at present is 5 parts per million and all those time weighted averages. I went on to say that the Australian occupational exposure limits for benzene have been lowered from having virtually no limits during the 1940s to 50 parts per million in the 50s; 25 parts per million in the 70s; 10 parts per million in the 1980s to the present level which is set at 5 parts per million. ... I anticipate that that level of safe exposure will be lowered to perhaps 1 to 2 parts per million in the foreseeable future based on the recognised risk of leukemia and other blood cancers such as multiple myeloma.
...
... the risk of developing leukemia or multiple myeloma is directly proportional to both the level of exposure and the time that that exposure went on as far as anyone knows. In fact we don't know, in relation to benzene, exactly how it causes the transformation of the bone marrow cells and leads to the development of leukemia or multiple myeloma. That is simply knowledge that no one has even today, and it is not known whether specific peaks of exposure are relevant or whether indeed it is the average time weighted exposure that is the relevant risk factor. But in general terms the more exposure you have, the more the risk increases above background levels ..."
Professor Bisby's exposition of the contact which the deceased would have had with benzene did not conflict with the findings made by the Tribunal. However, the Tribunal focused upon a sentence which appeared in Professor Bisby’s written report:-
"Multiple myeloma has been linked with heavy and repeated exposures to petroleum products, asbestos, ionising radiation, and some pesticides." (emphasis added)
The Tribunal held that the deceased's exposure to benzene had not been heavy and repeated and, on this ground, dismissed the application.
In considering the matter in this way, the Tribunal ignored the evidence of Professor Bisby that, on the facts of which he was aware, facts which the Tribunal accepted and which were "the raised facts", it was his opinion that the deceased's exposure to benzene during war service contributed "to the risk that he developed myeloma several decades later." The Tribunal thereby failed to deal with the substance of the hypothesis and failed to explain why, being made by a medical practitioner who was eminent in the relevant field, it was not reasonable. I do not say that the Tribunal was bound to find that Professor Bisby's hypothesis was a reasonable one. The Tribunal was entitled, indeed bound, to take into account Professor Fox's evidence. However, what the Tribunal was required to do was to pose the hypothesis in the terms in which the medical expert, Professor Bisby, stated it. That, the Tribunal did not do.
It was essential also, for the purposes of s120(1) of the Veterans’ Entitlements Act, to identify the hypothesis correctly. In Bushell, Mason CJ, Deane & McHugh JJ said at 416:-
“...we cannot conceive of a case where, for the purpose of s120(3), the hypothesis is reasonable having regard to the raised facts, yet the Commission could be satisfied, “beyond reasonable doubt, that there is no sufficient ground for making the determination” even though the raised facts are not disproved. Indeed, once there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc. with the operational service, it seems convenient to treat the case as governed by the application of s120(1). If that is done, the claim will succeed unless the Commission satisfied beyond reasonable doubt that the factual foundation upon which the hypothesis can operate does not exist: cf Barca v The Queen (1975) 133 CLR 82 at p105.”
By failing to consider the hypothesis in the terms expressed by Professor Bisby and in the context of the facts on which he relied, the Tribunal failed to apply s120 of the Veterans’ Entitlements Act as Parliament intended.
The appeal should be dismissed with costs.
I certify that this and the preceding 5 pages
are a true copy of the reasons for judgment
of the Honourable Justice Davies.
Associate:
Date: 14 August 1997
IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VG 92 of 1997 ) GENERAL DIVISION )
ON APPEAL FROM A JUDGMENT OF A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN: REPATRIATION COMMISSION
AppellantAND: DOROTHY IRENE PRESTEGAR
Respondent
CORAM: DAVIES, RYAN and HEEREY JJ PLACE: MELBOURNE DATE: 14 AUGUST 1997
REASONS FOR JUDGMENT
RYAN and HEEREY JJ
The Repatriation Commission appeals from a judgment of Northrop J in which his Honour allowed an appeal from a decision of the Administrative Appeals Tribunal. The Tribunal had affirmed a decision refusing the claim of the respondent to a pension under Part II of the Veterans’ Entitlement Act 1986 (the Act).
The respondent is the widow of Donald William Prestegar (the veteran) who died on 5 January 1992. The cause of death was hypocalcaemia with antecedent causes being shown as bony metastases and multiple myeloma. In the words of the Tribunal the hypothesis for the purposes of s 120(3) of the Act was that:
the veteran’s multiple myeloma was connected to the effect of benzene fumes ingested during the period of his service.
The actual cause of the disease could not be identified. The case of the Commission before the Tribunal and his Honour did not attempt to set up some non-compensable cause: cf Repatriation Commission v Owens (1996) 70 ALJR 904. The Tribunal held that a reasonable hypothesis was raised but that it was satisfied beyond reasonable doubt that there was no sufficient ground for making a determination that the death was war-caused within the meaning of 120(1). Relevantly those provisions are as follows:
120.(1) Where a claim under Part II for a pension in respect of the ... death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the ... death of the veteran was war-caused ... unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
(3) In applying subsection (1) ... in respect of the death of a person related to the service rendered by the person, the Commission shall be satisfied beyond reasonable doubt, that there is no sufficient ground for determining:
(a) ...
(c) that the death was war-caused ...
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 ... death with the circumstances of the particular service rendered by the person.
EVIDENCE BEFORE THE TRIBUNAL
The veteran enlisted in Victoria on 9 March 1942 at the age of 19. He served in the Northern Territory for considerable periods between 1942 and 1944 and later in Moratai and Manila. During the period he was stationed in the Northern Territory he was principally engaged as a motor cycle despatch rider. Evidence was given by a fellow veteran, Mr Ian Devine, who served as a troop mechanic and who saw the veteran virtually daily between January and June 1943. Mr Devine’s evidence was that as a despatch rider the veteran was responsible for fuelling not only his own motor cycle but also that of the officer whom he accompanied. There were no petrol bowsers and there was a difficulty in obtaining funnels, so petrol was poured directly from a fuel container into the tank. Mr Devine said that because of the lack of proper pouring facilities, petrol was often spilt. As a despatch rider the veteran worked hard and had spend up to twelve hours a day accompanying an officer inspecting installations in Darwin and the surrounding areas. Both motor cycles were probably refuelled each day. The veteran may at times have drawn petrol through a plastic pipe with his mouth to create a flow. Also it was the veteran’s responsibility to keep the motor cycles of the officer and himself clean. This was done each night in preparation for the next day. Conditions in Darwin were dusty. Surface dust was removed by using a dry cloth with some water. However the wheels and spokes were cleaned using a petrol soaked rag. Additionally motor cycle carburettors, given the dusty conditions, were cleaned with fuel about once a week. Sometimes this was done by the despatch rider rather than by a mechanic. As well, the veteran had at least two falls from his motor cycle as a result of which petrol spilled on to his body, on one occasion causing burns to his face.
Before the Tribunal, evidence was given by Professor John Bisby of Melbourne University, an expert in occupational medicine and toxicology. Professor Bisby has been engaged in long-term studies on the effects of petroleum products on workers. Professor Bisby’s evidence included a lengthy report dated 25 July 1994. In the earlier part of the report, where he is speaking generally of the causes of multiple myeloma, Professor Bisby says :
Among the occupational groups of workers where increased risk of multiple myeloma has been reported are radiation workers; petroleum workers; painters and paint workers; asbestos workers; rubber workers; printers; automotive workers; metal machinists. Multiple myeloma has been linked with heavy and repeated exposures to petroleum products, asbestos, ionising radiation, and some pesticides. All these associations are not proven directly in individual cases, but through studies on large groups of workers demonstrating higher risk in the group.
Professor Bisby goes on to speak of the veteran’s army service conditions and exposure to benzene. (Obviously this was on the basis of his instructions. Direct evidence was given by Mr Devine.) Professor Bisby points out that during the 1940s the proportion of benzene in petrol was up to 7 per cent and much higher than the level of .01% which prevails today. Professor Bisby then discusses the duties of the veteran as follows (emphasis added):
The services duties of Mr Prestegar probably varied over his service career. As a Despatch Rider, he would have had, by today’s standards, considerable exposure to fuels and the fumes of fuels. Duties would have involved filling his motor cycle (and possibly other vehicles), maintenance mechanical tasks, cleaning of parts, flushing through operations (e.g. for blockages or oil/grease removal). If practices such as cleaning metal parts with fuel were involved, the exposure to Benzene would have been well in excess of what is now regarded as a safe standard i.e. 1-2 ppm.
Refuelling vehicles under war service conditions involved considerable exposure, particularly in hot conditions. Drum filling was the norm rather than fixed tank or bowser filling. At the time, exposure to petroleum fumes, and the benzene in them, would not have been thought of as any hazard, although fire and explosion was recognised as a major risk. The precise level of Benzene in a petrol (motor gasoline or aviation gasoline) is only one part of the picture which determines a worker’s (or serviceman’s) actual exposure. The other major determining factors are the exposure to the fuel when performing typical tasks, and the time spent, perhaps over a period of years, on those tasks. All of these factors determine the “dose” received or the overall “exposure”. In turn, the dose determines the risk, or the probability of developing an adverse health outcome. This is accepted as the basis for all the assumptions about risk and probability of developing say leukaemia in workers exposed to Benzene and for decisions which are made by authorities and governments when setting standards. A WWII serviceman working in motor transport as a despatch rider might have quite low exposure when driving but if he was also servicing the vehicles or engaged in refuelling transport or decanting from drums, his exposure would be quite high. By “quite high” is meant in the range which we now know is associated with an increased risk of leukaemia and multiple myeloma. A despatch rider of that era would often be responsible for cleaning and general maintenance of his machine. The only solvent often available was gasoline and this was the commonest cleaning fluid. I suspect therefore that a despatch rider would have had higher exposures than a transport unit driver. In filling a motor cycle with gasoline in wartime conditions such as Mr Prestegar probably did, the filling methods used would have resulted in considerable exposure to the filler. It is reasonable to suppose that Mr Prestegar would have filled his own motor cycle much of the time. I therefore think that exposure would have been considerable and higher than modern petroleum workers who, as previously stated, do have an increased risk of multiple myeloma (and leukaemia), but low rates of other cancers.
To further put this into context, the exposure of motor mechanics washing parts in petrol containing 2% Benzene (today’s level) would be in the order of several parts per million, exposure to petrol station attendants about 0.5-1ppm, to tanker drivers filling takers 2-5ppm. In the 1970’s in Australia in transport and distribution of motor spirit with levels of Benzene at less than 5%, but often in the range 2.5-4%, exposures of 10ppm would in my opinion have been common. In wartime conditions, when decanting drum fuels containing 5% Benzene, exposures in the 10ppm-50ppm range would therefore have been commonplace. Again this depends on various factors, including ambient temperature, with higher temperatures creating higher exposure. My own opinion is that work in motor transport, fuel handling, and similar occupations, when handling fuels with Benzene contents in the 5% or greater range, has been shown in many studies of workers to increase the possibility that the worker will, later in life, develop leukaemia or related cancers, including multiple myeloma.
In .summary, Benzene was present in amounts in wartime fuel which were equal to or greater than those applying in more recent times, and circumstances of use were such that it is reasonable to assume that exposure was higher than that now known to cause risk
The Commission called Professor Richard Fox , Director of the Department of Clinical Haematology and Medical Oncology at the Royal Melbourne Hospital. In a report dated 14 November 1994, referring to an earlier report of Professor Bisby, Professor Fox said:
Going back to the beginning of Professor Bisby’s report, he then discusses Army service and conditions of exposure to fuels. This is described in a definitive manner. Professor Bisby does not quote any reference sources. Given his track record of interpretation of the literature that I have described above, then his comments must be questioned, to say the least. I would point out that there is no evidence that motor cycle riders are at an increased risk for the development of multiple myeloma. I believe Professor Bisby should be asked to provide objective evidence to support his statements.
In a later report dated 22 February 1995, after commenting on a further report of Professor Bisby, Professor Fox says:
In his research project he says there is a statistically significant increase in the incidence of multiple myeloma in petroleum industry workers. I don’t know why he does not actually provide us with data. Professor Bisby never appears to provide any data or facts, but just opinions.
He goes on to infer that he has made an assumption basically about army service condition re possible exposure to fuels, i.e. the information that he provided is what he thinks happens i.e. he appears to have `made up’ the information he dogmatically provided. It does not appear to be based on any facts. I believe this speculation is at the basis of his report.
In cross-examination on 12 July 1997, Professor Fox disputed that studies had confirmed a link between benzene and multiple myeloma. He said he did not know of any confirmatory studies that were specific. However he conceded that studies had left the possibility open and that the link between benzene and multiple myeloma was a “reasonable hypothesis” with “heavy exposure”.
THE TRIBUNAL’S DECISION
The critical reasoning of the Tribunal on the critical issues is found in para 10 of its decision, which is as follows:
10. The Tribunal accepts that, since the evidence of Professor Bisby and Fox agree on this point, it is reasonable to hypothesise a connection between exposure to fuel of which benzene is one component and the onset of multiple myeloma. Again, both professors agree that there must be heavy exposure to the petroleum products and Professor Bisby thought exposure must not only be heavy but also be “heavy and repeated”. Such exposure could aptly be attributed to the witness for the veteran, Mr Devine, in the circumstances in which he found himself. However, since the veteran spent long periods of time (up to 12 hours a day) on a constant basis riding his motor cycle where there was no exposure to fumes which he could ingest and only short periods of time where he would have exposure, ie. when filling the petrol tank of his and his officer’s motor bike, cleaning the vehicles or occasionally servicing parts using fuel, the Tribunal is satisfied beyond a reasonable doubt that the veteran’s exposure could not be described as “heavy”. In the matter of Evans and Repatriation Commission (unreported: Decision No 6427 dated 20 November 1990), the Tribunal upheld a decision regarding a similar claim. In that case the petroleum used by the veteran was aviation fuel which had a much higher benzene content (15 to 20 per cent) than motor vehicle petrol. In the instant case, the veteran spent two-thirds of his time over a 2 1/2 year period involved in maintenance and repair of vehicles involving the use of the aviation fuel. At paragraph 13 of its decision, the Tribunal stated:
“In order that there may no [sic] misunderstanding of the reasons for our decision, and no false hopes raised in respect of cases where veterans were exposed only to petrol for motor vehicles or only for brief periods to petrol containing benzene, we stress that we find that there is such a reasonable hypothesis because of the high benzene content of the aviation gasoline and the long and intensive exposure of the veteran to it. The scientific evidence before us would not have provided the factual basis necessary for the hypothesis to be a reasonable hypothesis if the veteran had been exposed only to petrol for motor vehicles even if the length and intensity of that exposure had been as great as was his exposure to the aviation gasoline.”
Without expressing any opinion as to whether a veteran exposed only to motor vehicle petrol (containing benzene) may, if the circumstances of exposure are sufficiently heavy and repeated, be able to successfully mount a claim where multiple myeloma is subsequently diagnosed, the Tribunal is satisfied beyond reasonable doubt that for the reasons stated in the instant case the circumstances surrounding the veteran’s involvement do not show heavy and/or repeated exposure. Accordingly, the hypothesis connecting his war service with the multiple myeloma condition is not able to succeed.
DECISION OF THE PRIMARY JUDGE
His Honour referred to these passages from the joint judgment of Mason CJ, Deane and McHugh JJ in Bushell v Repatriation Commission (1992) 175 CLR 408 at 414-416:
The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts (`the raised facts’) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true. ... So, in determining whether a hypothesis is reasonable for the purpose of s 120(3), it is not decisive that a connexion has not been proved between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran’s service. Nor is it decisive that the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists ...
... a hypothesis cannot be reasonable if it is “contrary to proved scientific facts or to the known phenomena of nature” (Commissioner for Government Transport v Adamcik (1961) 106 CLR 292 at p. 306). Nor can it be reasonable if it is obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous (East v Repatriation Commission (1987) 16 FCR 517 at p. 532).
But leaving aside cases of those kinds, the case must be rare when it can be said that a hypothesis, based on raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge.
... once there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc. with the operational service, it seems convenient to simply treat the case as governed by the application of s. 120(1). If that is done, the claim will succeed unless the Commission is satisfied beyond reasonable doubt that the factual foundation upon which the hypothesis can operate does not exist (cf. Barca v. The Queen (1975) 133 CLR 82 at p. 105).
His Honour also cited the following passage from the joint judgment of Mason CJ, Gaudron and McHugh JJ in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 569-571:
The position may be 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.
His Honour then concluded:
From a reading and re-reading of the relevant parts of paragraph 10 of the reasons of the Tribunal, the Court is satisfied that the Tribunal did not adopt the correct methodology in construing and applying subsections 120(1) and (3) of the Act. The two step procedure so clearly stated by the High Court was not followed. There appears to have been a confusion and stumble between the two steps. There is no clear statement of the hypothesis established from the raised facts. Is the hypothesis based on exposure to petrol containing benzene? Must that exposure be “heavy”? Must it be “heavy and repeated”? Is the Tribunal’s finding that it “is satisfied beyond reasonable doubt that the veteran’s exposure could not be described as `heavy’” directed to the establishment of the hypothesis under subsection 120(3) or the application of subsection 120(1) ? These doubts are strengthened by referring to the last part of paragraph 10; “... the Tribunal is satisfied beyond reasonable doubt that for the reasons stated in the instant case the circumstances surrounding the veteran’s involvement do not show heavy and/or repeated exposure. Accordingly, the hypothesis connecting this war service with the multiple myeloma condition is not able to succeed.”
The Court does not accept the contention made on behalf of the Commission that the appeal to this Court is on a question of fact only. It is not clear what finding of fact had been made. The correct methodology had not been applied. This involves a question of law. It is unsafe in law to permit the decision to stand.
CONCLUSION
In our respectful opinion, the learned trial judge correctly exposed the legal error in the Tribunal’s reasoning. At an early stage of its reasons the Tribunal properly identified the hypothesis raised by the respondent, viz that the myeloma was connected to the effects of benzene fumes ingested during the period of the veteran’s service. But what the Tribunal ultimately found to be disproved beyond reasonable doubt was a different hypothesis, viz that, in general terms, myeloma may be caused by “heavy and repeated” exposure to benzene. The hypothesis raised by the facts was specifically related to the actual conditions of this veteran’s war service. The extracts from Professor Bisby’s report quoted above make this clear. It was this hypothesis, not one stated in imprecise and subjective terms such as “heavy and repeated exposure”, which the Commission had to disprove.
Moreover, the reference to the earlier decision in Evans seems only explicable on the basis that the Tribunal treated it as authority for some kind of legal proposition that only exposure to aviation gasoline, as distinct from motor fuel, could cause multiple myeloma. This was erroneous. The Tribunal had to consider the evidence before it, in the light of the statute as construed in Bushell and Byrnes. As another Full Court of this Court has recently observed (Woodman v Repatriation Commission unreported 6 June 1997 Northrop, Davies and Ryan JJ) observed after referring to Byrnes at 571:
In our view, in indicating in that passage [in Byrnes at 571] that “proof of facts is not in issue at this point” their Honours are not to be taken as suggesting that the reasonableness or otherwise of the hypothesis is not a question of fact. Rather they were recognizing that the factual investigation ordained by s. 120 is a two-stage process. The first stage involves an examination of the reasonableness of the hypothesis of the kind propounded in the present case as a general medical theory. The second stage requires consideration of whether the propounded hypothesis is available in light of the facts proved to pertain to the particular applicant veteran. The approach to be taken to what we have called a two-stage process of factual investigation was outlined in the joint judgment of Mason CJ, Deane and McHugh JJ in Bushell at 414.
In the same context, the Full Court referred to another judgment of a Full Court of this Court in Repatriation Commission v Stares (1996) 60 FCR 594 at 601.
The appeal should be dismissed with costs, including reserved costs.
I certify that this and the preceding nine (9) pages are a a true copy of the Reasons for Judgment of thee Honourable Justices Ryan and Heerey .
Associate:
Dated: 14 August 1997
Counsel for the Appellant: Mr P Hanks Solicitor for the Appellant: Australian Government Solicitor Counsel for the Respondent: Mr M J Croyle Solicitor for the Respondent: Williams, Winter & Higgs Date of Hearing: 6 June 1997 Date of Judgment: 14 August 1997
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