Robson and Repatriation Commission - [2000] AATA 940

DECISION AND REASONS FOR DECISION [2000] AATA 940

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1997/530

VETERANS' APPEALS DIVISION          )
           Re      TREVOR ALBERT ROBSON
  Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal The Hon Mr R N J Purvis, QC, Deputy President

Date27 October 2000
PlaceSydney

Decision The Tribunal affirms the decision under review.

[Sgd]: R N J Purvis
Deputy President
CATCHWORDS
VETERANS' AFFAIRS – whether required to satisfy statement of principles – relevant statement of principles not in existence at time of making of decision- whether inability to obtain clinical management – war stress – Vietnam service – papillary carcinoma of thyroid – reasonable hypothesis – whether war caused condition
Veterans' Entitlements Act 1986
Acts Interpretation Act 1901

Bushell v Repatriation Commission (1992) 109 ALR 30
Bell v Repatriation Commission (1992) 26 ALD 545
Repatriation Commission v Bey (1997) 79 FCR 364
Byrnes v Repatriation Commisson (1993) 177 CLR 564
Esber v The Commonwealth (1992) 174 CLR 430
Lee v Secretary, Department of Social Security (1996) 68 FCR 491
Keeley v Repatriation Commission (1999) 30 AAR 48
Repatriation Commission v McLean (1998) 27 AAR 136
McKenna v Repatriation Commission (1999) FCA 323
Ogston v Repatriation Commission (1999)86 FCR 578
Gartrell v Repatriation Commission [2000] FCA 1228

THE APPLICATION AND DECISION UNDER REVIEW:

This is an application made by Trevor Robson ("the Applicant") in which he seeks review of a decision of a delegate of the Repatriation Commission ("the Commission") dated 18 April 1995. The initiating claim was made by the Applicant on 27 October 1994 and in that claim he detailed events suffered during his service as:
"During my service in Vietnam my tent was located adjacent to the hygiene unit shed where all chemicals were mixed prior to spraying – prior to my service in Vietnam I was a very light drinker – my drinking increased on active service in Vietnam due to war stress." (T4, p15)

His disability, which he described as "cancer of thyroid", and the Commission more precisely described as "malignant neoplasm of the thyroid gland" he then said, was caused by "exposure to chemicals in Vietnam including (Dioxin)".

By its decision the Commission rejected a claim for malignant neoplasm of the thyroid gland hereafter referred to as ("the relevant condition") of the Applicant to be accepted as a service related disability.
Review of the decision of the Commission by the Veterans' Review Board was on 5 May 1995 sought by the Applicant and on 19 February 1997, the Board affirmed the decision, the same being notified on 17 March 1997. The present application to the Tribunal was made on 22 April 1997.
In it's decision of 18 April 1995, deciding that the relevant condition was neither war-caused nor defence-caused, the Commission, in the then absence of a Statement of Principles for the relevant condition, stated:
"…
Medical advice is that the cause of this condition is unknown in your case. In the opinion of a Departmental Medical officer, there is no causal relationship to smoking or alleged exposure to chemicals in Vietnam, nor is there any relationship to your accepted war-caused disabilities.
There is no evidence of any reasonable hypothesis to link your malignant neoplasm of the thyroid gland with your operational service. I am also reasonably satisfied that there is no link with your defence service.
…" (T2, p7)

The hearing:

At the hearing of the application before the Tribunal the Applicant was represented by Mr Vincent of Counsel, the Commission by Ms Henderson of Counsel.
There was introduced into evidence the documents lodged by the Commission pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, the same being marked T1 – T35. Each of the parties tendered written material namely:
Exhibit No.   Description Date
A        Statement of Mr Robson    11 April 2000
B        Report of Dr McCullagh     21 October 1997
C        Supplementary report of Dr McCullagh   14 August 2000
D        two Pages of Department of Defence medical report on Mr Robson 13 May 1980
E        Dapsone Exposure and Cancer publication
Report of Professor Levi 28 April 2000
Attendance & Treatment card Undated

Oral evidence was adduced from the Applicant, Dr Peter McCullagh and Professor John Levi. The Applicant and medical witnesses were cross examined.
The issues for determination by the Tribunal:
At the time the matter was being initially considered by the Commission and at 18 April 1995 there was not in existence a Statement of Principles in respect of the relevant condition, that is, malignant neoplasm of the thyroid gland. The application was then determined by the Commission on the reasonable hypothesis basis. There was still no relevant Statement of Principles in existence at 19 February 1997, the date on which the Veterans' Review Board affirmed the decision.
On 20 February 1997 the Repatriation Medical Authority pursuant to section 196B of the Veterans Entitlement Act 1986 ("the Act") by Instruments 23 and 24 made a determination concerning the relevant condition. Instrument 23 was applicable to claims made for a pension based on operational service, Instrument 14 to claims made for a pension based on defence service. On 13 May 1998 Instruments 33 and 34 revoked those of 20 February 1997 but made provision in like terms for the relevant condition.
The issues for determination on the hearing of the present application are:
(1) whether the Applicant is required to satisfy the Statement of Principles of 13 May 1998 in respect of the relevant condition, even be it, that a relevant Statement of Principles was not in existence either at the time of the making of the decision by the Commission or at the time such decision was reviewed by the Veterans Review Board;
(2) if the answer to (1) is in the negative, whether there is a reasonable hypothesis that the relevant condition has been caused, contributed to or aggravated by the Applicant's service. The service relied on is eligible operational service in Vietnam; and
(3) if the answer to (1) is in the affirmative, whether the relevant condition of the Applicant satisfies factor 5(b) of the applicable Statement of Principles, that is, inability to obtain appropriate clinical management for the relevant condition, as in 1977 during the Applicant's eligible defence service in Papua New Guinea, he sought medical attention in respect of a lump on his neck but the neoplasm was not correctly identified nor thoroughly treated at that time.
It was submitted by counsel appearing for the Applicant that the law as to the applicability or not of the Statement of Principles is not certain, particularly when an Instrument comes into existence subsequent to an application being lodged and a decision made by the Commission. Whilst Ms Henderson of Counsel contends that there is no uncertainty, she was agreeable to all facts relevant to the above issues being before the Tribunal and findings of fact made in relation to each of them. This, it was thought, would obviate the need for a further hearing in the event of the legal position being at a later time determined to be other than as found by the Tribunal.
Relevant factual situation:
The Applicant was born on 6 June 1948 and served in the Australian armed forces from 22 January 1964 to 2 July 1984. Within the meaning of the Act the Applicant's eligible service extends over two periods, that is, 11 June 1968 to 11 June 1969, when he undertook operational service in South Vietnam, and from 7 December 1972 to 2 July 1984 on eligible defence service.
The Applicant, when 15 years of age, enlisted on 22 January 1964 and joined the army apprentice school. It was shortly after his twentieth birthday that he began his service in Vietnam. He contends that during such service and on account of the prevailing conditions (particularly "war stress") he began to drink beer and later beer and/or spirits. The rate of his consumption tended to increase and he became under the influence of liquor "drunk sometimes". He had not significantly consumed alcohol prior to his service. On his returning to Australia he continued to drink alcoholic liquor, although not to the same extent. He was posted to Papua New Guinea where he served over two periods. There, he continued to drink intoxicating liquor to excess as he did on his return to Australia and has to the present time. The Applicant maintains that his addiction to alcohol arose from the circumstances of his Vietnam war service. The evidence before the Tribunal is indicative of an excessive level of alcohol consumption by the Applicant.
During the course of his Vietnam service the Applicant was required, as were all the other service personnel then serving, and particularly during the wet season, to ingest anti-malarial medication. As stated by the Applicant in his evidence:
"We, we started anti-malarial Chloroquine, I think it was called sir, before we even left. We were on it the week before we left Australia and we had that every day we were there. And then at the beginning of the first, the wet season that I was there, half the task force was down with malaria and they put us on a course of Dapsone in addition to the Chloroquine and I vividly remember taking that for the wet season…I think the Dapsone was once a day and the Chloroquine was twice a day, morning and night".

The Applicant confirmed that there was also a spraying of pesticides and herbicides.

In January 1976, the Applicant was posted to Papua New Guinea where he served for extensive periods on two occasions. In February 1977 he attended a medical officer for assessment of his physical condition preparatory to consideration of his eligibility for a commission. The medical officer observed an abnormality on his neck area and referred him to Dr Martin, the latter then working at the Port Moresby General Hospital as a civilian medical officer. The initial diagnosis said to have been made by Dr Martin was that of thyroid cancer and the need for operative treatment and it's removal. According to the Applicant the operation was delayed for some time, he having made arrangements for travel through some countries in Asia. Upon his return Dr Martin did operate, the Applicant remaining in hospital for only a few days.
The tissue removed by Dr Martin was forwarded to a pathologist (G Aiken) for assessment, the latter on 12 May 1977 reporting :
"History: Lump anterior neck P.D. – dermoid cyst.
Macro: A thin walled cyst 5 x 4 x 3 cms. It contains greenish brown watery fluid.
Histology: A benign cyst lined by a single layer of cuboid epithelium (not a dermoid cyst)."
(T5, p13)
The Applicant was required by Dr Martin to return to see him in a few weeks. The Applicant did so. Dr Martin had seemingly, by that time, received the report of the pathologist and stated to the Applicant, whilst handing him the original report, that it was unhelpful as it neither confirmed nor refuted his initial diagnosis. "This pathology tells me nothing" he said, "it does not confirm or deny my initial diagnosis. It's got to be one or the other. I did operate on the basis of it being cancer of the thyroid. I don't know whether I got it out or not. I am not going to do anything more".
The evidence before the Tribunal is such as to leave an impression as to Dr Martin being the only surgeon at the hospital, considerable pressure being placed upon him.
The Applicant did not receive any further treatment nor was there a follow-up consultation nor mention made to him of any need for treatment or examination concerning "the lump in my neck". "I felt fine," the Applicant said, "until my symptoms reappeared in 1991…the same as those I had earlier suffered".
The Applicant retained the pathology report in his possession and continued with his service activities. He was discharged at Brisbane in June 1984. The Applicant said that in the years after 1977 he "periodically and occasionally" examined his neck and "that's how I detected the regrowth many years later". After leaving the army he maintained yearly medicals with a general practitioner but did not recollect mentioning the surgery he underwent in Port Moresby. Whilst still in the army he underwent regular general medical examinations.
It was in June 1991 that the Applicant observed and, no doubt felt, the presence of an abnormality in his thyroid area. He was under the care, at that time, of his general practitioner who referred him to a surgeon, Dr Davis Townend. On 14 June 1991 the Applicant underwent operative treatment, cystic masses being removed and found to be of thyroid origin. He subsequently on 4 July 1991 was subjected to total thyroidectomy, histopathology confirming a small microscopic focus of primary papillary carcinoma of the thyroid. There were no post-operative complications and there has been no evidence of recurrence.
The Applicant maintains that the relevant condition that he experienced in 1977 and 1991 was consequent – on the reasonable hypothesis basis – on his service in Vietnam, his addiction to alcohol and his ingestion of the drug Dapsone. In the alternative, and within the meaning of the Statements of Principles, it is maintained that the treatment he was afforded by Dr Martin, the Port Moresby General Hospital and the Pathologist was insufficient in the circumstances and that he should have been advised and cautioned as to a recurrence and treatment and /or action necessary to be taken. Implicit in this contention is an alleged nexus between the action or non-action taken in 1977 and the occurrence of the relevant condition in 1991.
On 27 October 1994 the Applicant lodged with the Commission a claim for disability pension and medical treatment under the Act for "cancer of the thyroid".
Medical evidence and the hypothesis:
In respect of this aspect of the Applicant's claim the Tribunal pursuant to section 120 of the Act is required to find that the relevant condition is war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. The Tribunal is to be so satisfied if after considering the whole of the material before it, it is of the opinion that that material does not raise a reasonable hypothesis connecting the relevant condition with the circumstances of the service rendered by the Applicant.
The meaning to be ascribed to the concept of reasonable hypothesis as expounded in Bushell v Repatriation Commission (1992) 109 ALR 30 at 36 is that the Commission will be satisfied beyond reasonable doubt that there is no sufficient ground for making the determination if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis. Thus if the commission is satisfied beyond reasonable doubt that it cannot accept the raised facts because of:

the unreliability of the material which is claimed to support them; or
because of the superior reliability of other parts of the material before the commission; or
the raised facts depend on inferences which the Commission is satisfied cannot be drawn;

the Commission would be satisfied that there is no sufficient ground for making the determination. Unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for the factual foundation of the hypothesis, the claim must succeed.

On 5 December 1996 Dr Roger Allison, Repatriation Oncologist with the Queensland Radium Institute, and one of the Applicant's treating specialists in 1991 stated:
"…
The above [the Applicant] has been treated for papillary carcinoma of the thyroid and the question has arisen as to whether the cause, if any can be ascertained.
Thyroid cancer is an uncommon malignancy which can occur at any age but is most common within the 20-50 year age group and predominantly occurs in women.
The vast majority of patients who have thyroid cancer have no identifiable cause. The one aetiological agent which is universally recognised is that of ionising radiation. It appears that the young or developing thyroid is particularly sensitive to tumour induction by radiation and therefore irradiation in utero or radiation at an early age is a potential aetiological agent. In most series the incidence of radiation induced tumours in [sic] under 10% and in many it is under 5%. My belief is that no other aetiological agents have so far been implicated in the causation of thyroid cancer.
In the absence of a history of radiation exposure I believe the cause of thyroid cancer in this patient is unknown". (T32, p85)

Dr McCullagh, senior fellow at John Curtin School of Medical Research, drew the attention of the Tribunal to a 1995 review of thyroid cancer where it was stated that "the transformation of the normal fully differentiated thyroid follicular cell to the rapidly growing undifferentiated anaplastic thyroid carcinoma "involved two main factors: growth stimulation and mutagenesis", the combination of which "is a potent carcinogenic regime". Dr McCullagh saw both types of factor present in the circumstances of this matter, that is, stimulation of thyroid growth and exposure to an "agent with a capacity to induce thyroid malignancy in experimental animals", these factors "likely to have being [sic] introduced as a consequence of his Vietnam service". The Applicant's use of alcohol was a factor with the capacity to engender thyroid growth stimulation.
Professor Levi, Director Department of Medical Oncology Royal North Shore Hospital, in noting Dr McCullagh's report and the raising of the issue, said:
"…
It is noted that in Dr McCullagh's report he raises the issue of biological evidence that excessive thyroid stimulation particularly in conjunction with potential mutagens may lead to the development of thyroid carcinoma. Certainly in vitro evidence and studies in rodents have supported this as a fundamental biological phenomenon (Reference: Hard GC Environmental health perspectives 106: 427- 436, 1998). Dr McCullagh has then gone on to indicate that exposure to excessive alcohol ingestion may well have a stimulatory effect on the thyroid gland increasing the potential to thyroid carcinoma. There are in fact no available studies to support this conjecture.
In particular there are certainly no epidemiological evidence to relate alcohol ingestion to thyroid cancer in humans. In a comprehensive review undertaken by Thomas D.B. "Alcohol as a cause of cancer" in the Environmental health perspectives 103: 153 – 160, 1995, it is specifically indicated that there are no significant associations reported between alcohol consumption and thyroid carcinoma. This is also supported by findings by the International Agency for Research on Carcinogenesis (IARC). (Reference: "Alcohol drinking", IARC Monograph on the evaluation of Carcinogenic Risks to Humans. 44, 1988)."
(Exhibit 1)
Dr McCullagh contended that there had been a number of reports over an extended period of time associating the use of alcohol with stimulation of the thyroid gland and disturbance of it's functions. The biochemical basis for this effect, he said, had been partially elucidated. In 1976, R.R. Williams, in an article published in the Lancet, "Breast and thyroid cancer and malignant melanoma promoted by alcohol induced pituitary secretion of prolactin, TSH and MSH", suggested a hypothetical mechanism by means of which alcohol consumption could increase the risk of development of thyroid cancer. Quoting the results of the United States Third National Cancer Survey, which detected an epidemiological association between alcohol consumption and thyroid cancer, Williams proposed that alcohol stimulated the secretion by the pituitary gland of thyroid stimulating hormone. Dr McCullagh noted that prolonged increase in thyroid stimulating hormone secretion would result in prolonged stimulation of the thyroid gland, one of the two types of factor identified and known by Williams as predisposing to thyroid cancer.

Whilst Williams, according to Dr McCullagh, did not provide any experimental evidence demonstrating that alcohol could actually stimulate the thyroid gland, some clear cut demonstrations of this phenomenon with good indications of the biochemical processes underlying it have, according to Dr McCullagh, been subsequently obtained. A paper by Hegedus et al published in 1988, "Independent effects of liver disease and chronic alcoholism on thyroid function and size: the possibility of a toxic effect of alcohol on the thyroid gland" metabolism 37, 229 – 33, reported on an autopsy study which revealed a direct association between alcohol consumption and damage to the thyroid gland. This association was not said to be dependent upon the occurrence of cirrhosis of the liver, suggesting the occurrence of a direct effect of alcohol on thyroid tissue. Hegedus et al in their paper drew attention to an earlier report that alcohol enhanced the binding of thyroid stimulating hormone to it's receptor on thyroid cells which resulted in increased activity of those cells. A report in 1993 by Nasu an Sugawara, "Ethanol has thyrotrophin-like activity in cultured porcine thyroid follicles", Endocrinology 132, 155 – 60, is said by Dr McCullagh to extend the findings discussed by Hegedus et al. Nasu and Sugawara found that the addition of Ethanol (ethyl alcohol) to tissue cultures of thyroid cells resulted in a response of those cells similar to that evoked by addition of thyroid stimulating hormone itself. It appeared that rather than augmenting the effect produced when thyroid stimulating hormone bound to it's receptor on thyroid cells, ethanol acted directly on that receptor independent of the presence of thyroid stimulating hormone and the intracellular events normally following exposure to thyroid stimulating hormone were evoked in it's absence. Dr McCullagh found it significant that the authors concluded that "our results indicate that ethanol concentrations equivalent to the blood level of moderate to heavy alcohol drinkers exert TSH-like activity in the thyroid follicle."
Dr McCullagh was of the opinion that the culture studies referred to in the above papers "may" provide an explanation for the "longstanding observation of disturbance of thyroid function associated with alcohol abuse." He noted a 1981 report by Kellner, "Assessment of thyroid function in chronic alcoholics" in Acta Medica Scandanavia 209, 93-6, a report on abnormal metabolism being observed in alcoholics. Taken together, Dr McCullagh says, the laboratory and clinical evidence relating to the effects of alcohol on thyroid function suggest that these would constitute a source of prolonged hyper stimulation of thyroid cells earlier identified by him as one of two factors required for development of thyroid malignancy. It was his opinion that a history of prolonged excessive use of alcohol consequent upon operational service "could" be regarded as providing excessive thyroid stimulation in the Applicant's case. The other factor mentioned by Williams in his 1976 paper was exposure to an agent with carcinogenic potential to the thyroid gland. Dr McCullagh was of the view that the Applicant was "likely to have been exposed" to an agent with carcinogenic capacity during his operational service and this in combination with his service-related alcohol consumption pointed to an association between that service and his thyroid cancer. The anti-malarial drug Dapsone was such an agent. The International Agency for Research on Cancer in it's Monograph 24 at page 70 had noted that an increased incidence of tumours of the thyroid was found in rats of both sexes in one study and in male rats in another study leading the International Agency to conclude in it's evaluation of Dapsone that there was limited evidence for the carcinogenicity of Dapsone in experimental studies, but no evaluation of the carcinogenicity of Dapsone to humans could be made.
It was the concluded view of Dr McCullagh that the existence of evidence suggesting carcinogenicity of Dapsone in rats and the targeting of that effect to the thyroid gland "certainly points to the scientific feasibility that use of Dapsone by an individual who thereafter experienced thyroid hyper stimulation as a consequence of the use of alcohol" would meet the requirements that he had outlined, and as mentioned above, for induction of thyroid cancer.
Dr McCullagh considered that the critical issue in determining the likely nature of the cyst removed in 1977 and consequently the possibility of it's relationship to the condition of thyroid cancer that was diagnosed in 1991 is the pathological nature of the former. The presence of cuboidal epithelium in the Applicant's 1977 cyst was said by Dr McCullagh to be entirely consistent with thyroid origin and completely incompatible with diagnosis of branchial cyst. But he said:
"…
Any reconstruction of the events of 1977 in Mr Robson's medical history can only be based on probabilities. On the available histopatholgical description the appearance of the cells in the legions strongly resembled thyroid cells and was quite inconsistent with the cells of a branchial cyst.
…
Finally I note Professor Levi's general comment that there is certainly no epidemiological evidence to relate alcohol ingestion to thyroid cancer in humans and draw attention to the findings in a large survey from the US National Cancer Institute of a positive association between alcohol consumption and neoplasms of the thyroid gland (Journal of the National Cancer Institute 58, 524 – 547)…" (Exhibit C)

In the course of his oral evidence before the Tribunal Dr McCullagh was questioned as to the ingestion of Dapsone by the Applicant and confirmed that Dapsone had been shown to result in tumours of the thyroid gland in some experimental animals and that "if one is working from a hypothesis one of the main sources of information on which to base a hypothesis is results that have been obtained in experimental animals." When it was put to him that the only studies which have been done suggesting any possible connection between Dapsone and thyroid cancer are those conducted on laboratory rats, Dr McCullagh stated "but in laboratory rats Dapsone did not produce a whole host of tumours. It produced tumours in only two areas, the spleen and the thyroid gland and a specificity in the organ effected by a particular gland by a particular agent always raises one's suspicion about what it could do". His attention was drawn to a report commissioned by the Minister for Veterans' Affairs into Dapsone exposure Vietnam service and cancer incidence of December 1992, the same report not showing a suggestive link between Dapsone and Thyroid cancer in the personnel studied in it. Dr McCullagh said that in his view the "statistical power of that report would be very small". It was noted that the rat studies were now 20 or 30 years old, even be it, that they had been reviewed by the International agency for research on cancer and according to Dr McCullagh, "noted by them as something that couldn't be disregarded". It was put to Dr McCullagh that it still remained to be demonstrated 20 or 30 years later that Dapsone has a connection with thyroid cancer in human beings to which he replied:
"It remains a hypothesis which has not been disproved. You can never – it's very difficult to prove the scientific – I mean to go back to Carl Popper you – strictly you – it is very difficult to prove anything. You can very convincingly disprove things, that one has not been disproved".
Professor Levi, as well as holding his directorial appointment at Royal North Shore Hospital, is a consultant physician specialising in the field of medical oncology and actively involved in the management of a wide variety of cancers, including thyroid cancer. He states that:
"…
It is clear from the available history that Mr Robson suffered from a primary papillary carcinoma of the thyroid gland which probably metastasized to mediastinal and pretracheal lymph nodes for which he underwent relevant resection in June 1991 followed by radioactive iodine.
Causation of papillary thyroid carcinoma
As indicated in Statement of Principles 33 of 1998 available evidence indicates a recognised causation by exposure to therapeutic ionising irradiation or ionising irradiation from A bomb explosion in Hiroshima or Nagasaki. Indeed all available reviews still consider that the only recognised causation of an environmental nature relates to ionising irradiation. There is evidence of an hereditary component to the development of thyroid carcinoma. Insufficient evidence is yet available to indicate that environmental thyroid deficiency which may lead to pre existing goitre and then going into carcinoma of the thyroid gland is definitely associated (reference: Levi F et al "Previous Thyroid Disease and Risk of Thyroid Cancer in Switzerland", European Journal of Cancer 27: 85 – 88, 1991; Franceschi S et al Epidemiology of Thyroid Carcinoma (Clinical Reviews Oncogenesis 4:25 – 52, 1993)).
It is noted that in Dr McCullagh's report he raises the issue of biological evidence that excessive thyroid stimulation particularly in conjunction with potential mutagens may lead to the development of thyroid carcinoma. Certainly in vetero evidence and studies in rodents have supported this as a fundamental biological phenomenon (Reference: Hard GC Environmental Health Perspective 106: 427 – 436, 1998). Dr McCullagh has then gone on to indicate that exposure to excessive alcohol ingestion may have a stimulatory effect on the thyroid gland increasing the potential to thyroid carcinoma. There are in fact no available studies to support this conjecture.
In particular there is certainly no epidemiological evidence to relate alcohol ingestion to thyroid cancer in humans. In a comprehensive review undertaken by Thomas DB alcohol as a cause of cancer in the Environmental health perspective 103: 153 – 160, 1995 it is specifically indicated that there are no significant associations reported between alcohol consumption and thyroid carcinoma. This is also supported by findings by the International Agency for Research on Carcinogenesis (IARC). (Reference: "Alcohol Drinking" IARC Monograph on the Evaluation of Carcinogenic Risks to Humans 44, 1988).
…" (Exhibit 1)

Professor Levi, in referring to a paper by Hurley PM et al, Environmental health perspectives 106: 437 – 445 1998, noted that the author specifically indicated that "no chemicals are known to be carcinogenic to the human thyroid". Professor Levi was of the opinion that that all available epidemiological evidence supported and was consistent with a clinical finding that the only known environmental factor of potential causation for thyroid cancer was ionising irradiation.
It was noted by Professor Levi that the site of the cyst resected in 1977 was from the manubrial notch and that subsequent presentation of masses in 1991 included one of the lesions being in that site and the other being lower in the retrosternal region. This raised the question as to the cystic masses diagnosed as being likely metastatic disease within lymph nodes from papillary carcinoma of the thyroid, as identical in site to the cyst removed in 1977. The histopathology of the resected cyst in 1977 was outlined by cuboidal epithelium which was not typical thyroid epithelium. According to Professor Levi this would tend to support the cystic mass being more likely to be a brachial cyst rather than that arising from the thyroid gland. It is not possible, according to Professor Levi, to be absolutely certain that the cyst removed in 1977 was different from the lesions in 1991 which proved to be metastatic papillary carcinoma of the thyroid gland. It is noted that Dr McCullagh does not agree with the latter view propounded by Professor Levi.
Professor Levi does express an opinion to the effect that it is possible the cystic legion in the manubrial notch in 1977 may have been an early manifestation of papillary carcinoma of the thyroid gland. He stated "certainly the particular cyst resected was benign at the time but there is some potential that this cyst related to other abnormalities within the thyroid gland which were slowly evolving to become papillary carcinoma of the thyroid. Certainly papillary carcinoma of the thyroid gland often has a long evolutionary period which could be as long as 10–15 years."
On his attention being directed to the survey of the US National Cancer Institute referred to by Dr McCullagh, Professor Levi said that he considered the survey not to be truly significant or worthwhile epidemiological evidence and
"that's also why at a later date, considerably later in fact, there are two subsequent reviews that have looked at, in detail, all the studies that have been undertaken looking at the potential association of alcohol ingestion and thyroid carcinoma and not being able to demonstrate such an association".

When finally questioned about the current state of knowledge as to the causation of thyroid carcinoma Professor Levi summarised his earlier evidence by saying "there are very limited recognised associated risks. One is the exposure to ionising radiation and the other is an hereditary association where there is evidence of several members of a family having had prior histories of carcinoma in the thyroid gland".

Mention has earlier been made of the decision in Bushell (supra) and the meaning there ascribed to the concept of reasonable hypothesis. In Bell v Repatriation Commission (1992) 26 ALD 545 at 547 it was stated:
"Thus the general trend of decisions of the Administrative Appeals Tribunal has been to accept that a reasonable hypothesis is established when a responsible medical partitioner speaking within the ambit of his or her expertise and after considering the particular facts of the veteran's case propounds a realistically possible, not fanciful cause or connection between war service and the veteran's disability. To be reasonable an hypothesis must be responsible. But that is not to say that to be reasonable an hypothesis must be supported by scientific proof or the general acceptance of the medical profession.
…what is required is some degree of acceptability or credibility to make the hypothesis reasonable and some support in [the] material before the Tribunal so that the hypothesis can be said to be raised by that material".

In Repatriation Commission v Bey (1997) 79 FCR 364 at 372 it was stated:
"…while a hypothesis may be no more than a possibility or supposition in order for a hypothesis to be reasonable it must… be pointed to or supported and not merely left open as a possibility by the material before the decision maker."

In Bushell (supra) at 414 it was stated:

"The material will raise a reasonable hypothesis within the meaning of section 120(3) 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 Byrnes v Repatriation Commisson (1993) 177 CLR 564 at 569 – 570 it was stated:

"The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than that the material before the Commission must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified the question for determination is whether the hypothesis is reasonable".

In his reasons for decision in Bey (supra) RD Nicholson J at page 376 summarised what he considered to be the effect of the authorities on the nature of a reasonable hypothesis and the question of whether a so-called "mere possibility" can qualify as such. The summary was as follows:
"(1) For a reasonable hypothesis to arise, what is required is more than a mere hypothesis. Something more than a possibility consistent with the known facts is required: East (supra at 531).

(2) An hypothesis which is fanciful, impossible, incredible or not tenable or too remote or too tenuous will not be a reasonable hypothesis: East (supra at 531). The hypothesis must not be fanciful or unreal: East (supra at 531).
(3) An hypothesis can be reasonable without being proved and in that sense may be theoretical: East (supra at 531); Bushell (supra at 414-415).
(4) Nevertheless there must be some material which points to some fact or facts ('the raised facts') which support the hypothesis and from which the hypothesis can be regarded as reasonable if the raised facts are true: Bushell (supra at 414). It is from the evidence that the raising of a reasonable hypothesis comes: Bushell (supra at 427). This means the material before the Commission must raise some fact or facts which give rise to the hypothesis: Byrnes (supra at 569-570). It will be this which gives a degree of acceptability or credibility to the hypothesis: East (supra at 531).
(5) It would be rare for an hypothesis put forward by a medical practitioner who is eminent in the relevant field of knowledge to be held to be unreasonable: Bushell (supra at 414-415; 430).
(6) An hypothesis will not be unreasonable because the medical opinion giving rise to it is in conflict with other medical opinion: Bushell (supra at 415). Nor is it decisive; the medical or scientific opinion which supports the hypothesis has little support in the medical profession or among scientists: Bushell (supra at 414).
(7) A "mere possibility", in the sense of an hypothesis advanced, eg: by a medical practitioner speaking within the ambit of his expertise, will ordinarily raise a reasonable hypothesis. The evidence of expertise will provide the acceptability or credibility to the hypothesis even if the evidence is [sic] the hypothesis cannot be excluded: Bushell (supra at 414 and 430). While eminence in such field alone, in a case where the medical opinion is no more than to the effect the possibility of causation of the morbid condition by the nature of the service cannot be excluded, is close to an hypothesis unsupported by any evidence, it will, however, be a matter of judgment whether the eminence is such as to give rise to raised facts.
(8) A "mere possibility", in the sense of an hypothesis unsupported by any evidence of a witness with appropriate expertise to give it acceptability or credibility, cannot qualify as a reasonable hypothesis - it will not be an hypothesis "raised by the facts."

(9) An hypothesis which satisfies section 120(3), that is reasonable having regard to the raised facts, will create the position where it cannot be conceived there is any ground for a conclusion by the Commission under section 120(1) that "there is no sufficient ground for making that determination": cf Bushell (supra at 416)."

In his submissions in support of the existence of a reasonable hypothesis, Mr Vincent on behalf of the Applicant submitted that the United States study above referred to evidenced a likely positive association with a likely causal relationship. "It is a likely association yet to be demonstrated," he said. "And of course once that is demonstrated and once there is epidemiological evidence proving it were it to be proven then it is no longer a hypothesis of course. It moves into the realm of scientific fact". The same it was submitted could be said about the additional risk factor that was proposed by way of the ingestion of Dapsone. The reasonableness is at least partly shown by the fact that it is being tested and the value of animal studies is not to be underestimated. It was submitted that there is nothing that has come to light which is capable of disproving the hypothesis as raised no matter whether one is thinking of Dapsone having an immuno-suppressive role or whether seen as potentially carcinogenic itself. Thus, the Applicant's case is that Dr McCullagh has proposed a mechanism of alcohol ingestion together with Dapsone and thus the bringing about of the cancer of the thyroid, The facts are raised sufficient to provide a necessary basis for the reasonableness of the hypothesis. They are not capable of being disproven by any material that is available. The mechanism proposed by Dr McCullagh does not rely on his opinion alone but is one that has been proposed in the sense of alcohol leading to thyroid cancer, by other people by way of a hypothesis study or a retrospective study. The latter implies a study in effect looking for what is worthy of further study, materials suggesting a profitable line of enquiry.

On behalf of the Commission Ms Henderson submitted that Dr McCullagh had not been shown on the evidence before the Tribunal to be a relevant expert in relation to the issues for determination; he is a medical researcher not experienced in a practical sense, as is Professor Levi. He did not express a personal opinion but rather one derived from studies where he had located views advanced by other people. He recited these views and did not give any evidence which was based on his own experience. Further, the evidentiary material upon which the views identified by Dr McCullagh were based rest was said to be tentative and unsatisfactory. The alcohol material consisted of an article in the Lancet Journal which was not a study of "any live persons whatsoever. It is a hypothetical document about breast and thyroid cancer and malignant melanoma promoted by alcohol-induced pituitary secretion of prolactin TSH and MSH." A statement made by the author in the Lancet article is hypothetical and picks up, it is submitted, the results of the US Third National Council Cancer Survey which as Professor Levi noted is a retrospective study of cancer patients looking at the multitude of different factors which are raised by analysing data about people who already had cancer. It is a hypothetical statement which itself is based on a retrospective study that merely turned up matters that might be further investigated. It was submitted that the United States study did not purport to demonstrate causal links. The alcohol aspect of the documentation was tentative and far from being a basis for a reasonable hypothesis was a hypothesis built upon retrospective data with no causal effects demonstrated.
With regard to Dapsone, it was noted that this drug was referred to in Bell (supra) and that the state of knowledge in relation to it had not advanced since that decision in 1992. Even be it there had been a study conducted in relation to Singaporean conscripts and the incidence of respiratory infections consequent upon taking Dapsone. There is no evidence linking the two undisputed facts of ingestion of alcohol and Dapsone with thyroid cancer as a reasonable hypothesis by a person speaking within the limits of his or her expertise, the same being realistically possible rather than fanciful as a causal connection.
The Commission submits that reasonableness has not been made out on the tentative material made available by Dr McCullagh, he not professing expertise in the relevant area. He did not claim to be involved in cancer research or cancer treatment. He is not an epidemiologist. Whilst practicing for a few years as a physician in the early years of his career, he has otherwise been a medical researcher but even in that field makes no claim for research in relation to carcinogens. He did not make any claim to have researched Dapsone and made no claim to have researched alcohol. He made no claim to have done any study in relation to thyroid cancer and could not on any analysis of his evidence be styled as an expert who would have the authority to tell what is thought to be or on reasonable grounds regarded as connected with thyroid cancer.
Professor Levi on the other hand, is a professor at a respected teaching hospital, actually involved in the treatment and management of patients with thyroid cancer and speaks with authority about the causation of the disease. He is well aware of the relevant literature, was quite definitive in his view that no reasonable hypothesis had been raised in relation to causation of thyroid cancer in connection with either alcohol or Dapsone. As to the possible carcinogenic effects of Dapsone Professor Levi maintained that notwithstanding the rat studies so referred to in Bell (supra) there is nothing to indicate a carcinogenic effect from the use of the drugs. This is not to say that it has been excluded as a possibility but nothing has been established on the study into carcinogens which indicates that Dapsone does have a connection in human subjects with the onset of thyroid cancer. An animal study does not demonstrate causation in humans or even a reasonable possibility of causation in humans.
The Tribunal being mindful of the evidence placed before it and the submissions made by Counsel considers it relevant to direct it's attention to the various prerequisites noted by Nicholson J in Bey (supra). It is clearly on the evidence of Dr McCullagh that there exists a hypothesis. It is possible that there may be substance in the hypothesis. However the facts upon which the hypothesis is advanced namely, ingestion of alcohol and Dapsone, and the effect or effects of such ingestion upon the thyroid has not been established. There is no issue as to the ingestion of alcohol and Dapsone per se. There is no evidence however of the required nexus. There is no material which points to facts to be proved supporting the hypothesis and from which it can be regarded as reasonable if the facts be true. The material before the Tribunal does not raise facts which give rise to the hypothesis. The raised facts depend on inferences which the Tribunal is satisfied cannot be drawn. Dr McCullagh is no doubt an eminent research scientist. He has been able to elicit the material referred to earlier in these reasons. But he has not personally engaged in research in the area and it could not be said that the effects of alcohol ingestion or drug ingestion are fields of his study. Whilst it is clear from the material before the Tribunal that there is a possibility of a nexus existing, Dr McCullagh although referring to papers and reports was not able to take the matter further. Whilst, as is stated in Bey (supra) at 377, an hypothesis unsupported by other evidence but propounded by a medical opinion and someone eminent in the field may be sufficient, it is a matter of judgement as to whether the eminence in the sense of personal experience and belief is such as to give rise to raised facts. In the present application the Tribunal does not consider that Dr McCullagh has the relevant eminence and experience in the relevant field in the relevant sense to proffer the hypothesis as his own from his own research and experience and thus make it reasonable.
Accordingly the Tribunal is satisfied on the basis of the whole of the material placed before it that there is not raised a reasonable hypothesis. The Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for determining that the relevant condition of the Applicant was war-caused.
Preclusion of an independent hypothesis:
As indicated earlier in these reasons one of the issues for determination by the Tribunal is whether the Applicant is required to satisfy the Statement if Principles in respect of the relevant condition or whether he can seek to maintain a reasonable hypothesis independent of the Instrument. That is, as to whether the Applicant is required to satisfy the relevant Statement of Principles.
No statement was in existence at the time of the primary decision or at the time the matter was before the Veterans' Review Board. There is such a Statement of Principles applicable to the relevant condition in existence at the time of the hearing before the Tribunal. It is contended by Counsel appearing on behalf of the Applicant that the right to have the decision reviewed by the Tribunal can be characterised as a right coming within the meaning of section 8 of the Acts Interpretation Act 1901 so that on review the Tribunal must apply the law as it was at the time the primary decision was made. Counsel support of this submission referred to Esber v The Commonwealth (1992) 174 CLR 430; Lee v Secretary, Department of Social Security (1996) 68 FCR 491; Keeley v Repatriation Commission (1999) 30 AAR 48 at 54-55 and Repatriation Commission v McLean (1998) 27 AAR 136 at 143.
The above however may well be so unless legislative provisions expressly cover and provide for this contingency.
The relevant legislative scheme and provisions were detailed in McKenna v Repatriation Commission (1999) FCA 323. The Tribunal can do no better than set forth the observations there made in this regard:
"Section 120A of the Act, the terms of which, so far as they are presently relevant, are set out below, was introduced into the Act by the Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Act 1994 (Cth) ("the Amendment Act"). The Explanatory Memorandum in relation to the Bill for the Amendment Act indicates that the Amendment Act was intended, amongst other things, "to ensure a more equitable and consistent system of determining claims for disability pensions for veterans and their dependants." The Explanatory Memorandum contained the following statements:
The new provisions deal with the determination of claims for pensions made on or after 1 June 1994 by reference to Statements of Principles. They will still require certain claims to be determined on the basis of a "reasonable hypothesis standard of proof", but with questions of medical causation to be determined in accordance with the amendments ...
The initiative will see the establishment of the Repatriation Medical Authority.
It has become apparent that lay tribunals do not deal with medical-scientific issues consistently and that the adversarial approach to fact finding applied in administrative tribunals is inappropriate for determining medical-scientific issues that call for detailed technical knowledge.
The Repatriation Medical Authority will provide the appropriate forum for the resolution of technical medical-scientific issues. This will ensure that there will be consistency on medical-scientific issues at all levels of the determining system.
The Authority will prepare Statements of Principles based on sound medical-scientific evidence that will exclusively state what factors related to service must exist to establish a causal connection between particular diseases, injuries or death and service.
...
This change is aimed at ensuring that medical opinions supported by little or no medical-scientific evidence do not prevail over the carefully developed mass of medical-scientific opinion."
It seems plain enough that the enactment of the Amendment Act reflected legislative dissatisfaction with the then operation of s 120 of the Act, which addresses the standard of proof of, relevantly, a claim under Part II of the Act for a pension in respect of a veteran's incapacity from disease relating to the operational service rendered by the veteran.
Section 120 relevantly provides as follows:
120(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 service 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 may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
...

(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 may be, 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.
The manner of operation of s 120 before the enactment of the Amendment Act has been authoritatively considered on a number of occasions (see, for example, Bushell v Repatriation Commission (1992) 175 CLR 408; Byrnes v Repatriation Commission (1993) 177 CLR 564.)
In Byrnes v Repatriation Commission, a case concerning injury rather than disease, the High Court stated at 571:
The position may be summarised as follows: (1) First, subsection (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, subsection (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."
Section 120A of the Act has modified the operation of s 120 so far as claims made after 1 June 1994 are concerned. Section 120A, so far as is here relevant, provides:
"120A (1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:
(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.

(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b) has declared that it does not propose to make such a Statement of Principles.
(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be."

In Ogston v Repatriation Commission (1999) 86 FCR 578 the Federal Court was of the opinion that the intention of the legislature in amending the legislation was to ensure that the scheme thereby introduced should apply to all claims under Part II of the Act that relate to operational service rendered by a veteran, made on or after 1 June 1994. The Court there noted that section 120A(1) declared that it applied to claims of the type referred to therein "made on or after 1 June 1994". Section 120A(2) requires the Commission "in certain circumstances not to determine a claim unless or until the authority has either determined a relevant Statement of Principles or declared that it does not propose to make such a Statement of Principles. There could be no point in the Commission delaying it's determination of a claim as required by section 120A(2) unless assuming a relevant Statement of Principles was ultimately determined, section 120A(3) was to have an operation in respect of the Commissions determination of the claim." The Applicant in Ogston, as does the Applicant in the matter presently before the Tribunal, contended that once a claim had been submitted under Part II of the Act the claimant had a right to have the claim determined by reference to the law in operation on that day. The Applicant placed reliance on various provisions of the Acts InterpretationAct 1901. It was there noted it was noted that section 8 of the Acts Interpretation Act is concerned with the effect of the repeal in whole or in part of one Act by another. The Court was, and the Tribunal is, not concerned with any such repeal. As with section 8 so with other sections of the Act, the Court was, and the Tribunal is, concerned with the construction of section 120A of the Act and not with the construction of any Statement of Principles. In any event the various provisions of the Acts Interpretations Act are subject to any contrary intention shown in the legislation and as was noted in Ogston and is now noted by the Tribunal the unambiguous intention of the legislature was made clear by the terms of section 120A of the Act. In Ogston the contention that once the Applicant had submitted her claim under Part II of the Act she had a right to have her claim determined by reference to the law in operation on that day was rejected. Upon the making of a claim for a pension the claimant had no right to have the claim determined by any particular procedure or to be able to vindicate her claim in any particular way even be it that a claimant did gain a vested right to receive a pension if a death or injury was war-caused. The decision and reasons for it in Ogston were noted in Gartrell v Repatriation Commission [2000] FCA 1228. Gartrell was an appeal on a point of law from a decision of the Tribunal, the question for decision being described as:
"The question involved is whether a Statement of Principles determined under section 196B of the Veterans' Entitlements Act 1986 (CTH) made after the date of lodgement of a claim and having the effect of negating a reasonable hypothesis that an Applicant's claimed disability was service related applies such that the claim must be determined in accordance with that Statement of Principles even though the effect might be to dent a claim for which some evidentiary support was available at the time the claim was lodged".
The appeal in Gartrell (supra) was brought in order to challenge the decision in Ogston (supra). The Court noted that the decision in Ogston was unanimous, that special leave to appeal to the High Court had been refused and it could not be said to be clearly wrong. "Indeed it appears to accord with the usual principles applicable in situations of this kind. We have no proper course other than to follow Ogston" .

It is the submission of the Commission that sections 120A and 120B apply to the Applicant's claim. The reasoning in Ogston (supra) establishes Parliament's intention in the legislation that any claim made on or after 1 June 1994 is to be determined by reference to any relevant Statement of Principles even though that Statement of Principles is made after the claim is lodged. The reasoning in Ogston applies and effect is to be given to the provisions of the Act.

It is clear from the decision in Ogston (supra), confirmed by Gartrell (supra) that the legislative provisions require a claimant such as the Applicant to establish a right in accord with a relevant Statement of Principles and not, as was previously the case, consistent with a reasonable hypothesis.
The Tribunal in this matter is satisfied that even though prior to the determination of the relevant Statement of Principles the Applicant's claim might have been considered on the reasonable hypothesis basis, that in light of the determination of a relevant Statement of Principles the Act requires that the matter be determined in accord with such Statement of Principles.

Statement of Principles – Appropriate clinical management:

The subject claim was lodged by the Applicant on 27 October 1994, that is, after 1 June 1994. The Application is to be determined in accord with the legislative provisions as they now are, the Tribunal being required to assess the reasonableness of any hypothesis submitted in accordance with the relevant Statement of Principles issued by the Repatriation Medical Authority.
Such Statement of Principles are those earlier mentioned namely 33 and 34 of 13 May 1998. The relevant provisions of such Statement of Principles provide:
"Factors:
5.The factors that must as a minimum exist before it can be said that a
reasonable hypothesis has been raised connecting malignant neoplasm
of the thyroid gland or death from malignant neoplasm of the thyroid
gland is connected with the circumstances of a person's relevant service are:
(a)…
(b) inability to obtain appropriate clinical management for malignant
neoplasm of the thyroid gland
…
Factors that apply only to material contribution or aggravation
6. Paragraph 5(b) applies only to material contribution to, or aggravation of,
malignant neoplasm of the thyroid gland where the person's malignant
neoplasm of the thyroid gland was suffered or contracted before or during
(but not arising out of) the person's relevant service; paragraph 8(1)(e),
9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers.
…"

Dr McCullagh was of the opinion that as regards adequacy of management of the Applicant surgical excision of the legion in 1977 was correct. However if the likely thyroid origin of the cyst had been suspected, as he believes the histopathology and Dr Martin's clinical judgement suggested, further investigation targeted to the thyroid gland would have been appropriate. Furthermore, given the capacity of some benign thyroid lesions ultimately to undergo malignant transformation, ongoing surveillance of the Applicant would have been indicated after the detection of abnormal tissue of likely thyroid origin in an extra-thyroidal location. Dr McCullagh stated, in this day (year 2000) and age, that in practical terms any thyroid tissue be it however benign it located outside the bounds of the capsule of the thyroid gland would be regarded as either malignant or potentially malignant and would be treated as such a nd would require careful consideration afterwards. By 1977 the view held was that any thyroid tissue regardless of how normal it appeared which was outside the capsule of the thyroid was not just a harmless leftover from embryology but something that was to be treated with caution. Further investigation at the time and, in the absence of any abnormal findings a follow up of the patient, would have been appropriate. Dr McCullagh was asked "on the basis of what was observed in 1991, do you believe on the history that you have been able to obtain that there was any warrant for removal at an earlier date?" He answered:
"Well he doesn't appear to have had symptoms, to have noticed any lesion. I – my recollection is that without looking back there now that when his thyroid was removed there was a relatively small focus of cancer found within the thyroid gland itself. That would probably not have been - almost certainly not – it wouldn't have been detectable just by palpation examination of his thyroid gland. It would have been detected very likely by a scan so recurrent scans of the thyroid gland would have very likely in that case revealed a cold spot or an area that was not functioning normally. That might well have been the case considerably before 1991 one can't say but… the only symptom at either occasion was the sensation of a lump which on the first occasion someone found it for him, on the second occasion he found it himself …so far as I can see from the summary of his notes I've got there wasn't any clinically observable lesion of the thyroid gland itself. It was only when it was removed that the small tumour could be found. How long that had been there I wouldn't be prepared to guess."
When asked as to the situation in 1984 on the Applicant concluding his army service Dr McCullagh made reference to the use of ultra-scans and cat-scan procedure.
Professor Levi said that it was reasonable to conclude that as the original cyst in 1977 proved to be benign and no other abnormalities were apparent at the time of evaluation in 1977 that further management would not have been indicated. If investigation gave rise to the potential that the lesion or the manubrial notch arose from the thyroid gland then a thyroid scan and/or ultrasound of the thyroid would have been considered. The resection of the cystic legion in 1977 could not be considered to have in any way aggravated the risk of development of the papillary carcinoma of the thyroid gland subsequently diagnosed in 1991. Similarly no acceleration of development of the condition could be considered. The cyst removed in 1977 proved to be benign it appeared to have no indication of definite clinical suspicion of origin from the thyroid gland. If such a suspicion had been present then consideration for thyroid scan or thyroid ultrasound would have been appropriate. In his oral evidence Professor Levi did say that if the condition had been classified in 1977 as a benign cyst and it was felt that it was totally resected and there was no other abnormality detected at the time, that is clinically, then "it is hard to know what else they were going to do". He acknowledged however that a thyroid condition seemed to be "the most likely single sign" and logically a follow up regime should have been implemented, this only on the basis of a clinical suspicion of there being residual abnormality. Indeed Professor Levi in the first instance would have anticipated at the time of the initial history and examination some index of suspicion about the nature of the cyst being raised. Once the cyst was resector-removed and the pathology report given then whatever index of suspicion there was with regard to another diagnosis would have either been completely overturned or else maintained. If it was maintained then one would have looked at the potential for further follow up. The provisional diagnosis was displaced and once the dermoid cyst was ruled out, a benign cyst was probably the most likely possibility. On the basis of probabilities Professor Levi having excluded dermoid cyst considered thyroid cyst as a distinct possibility. Professor Levi did maintain his original opinion that the 1977 was not typical of thyroid epithelium, however, he conceded that it could be thyroid epithelium in the context of a cyst within the thyroid gland which could then be a single-layered cuboidal area.
It is contended by the Applicant that the relevant condition was connected with his defence service because he did not obtain appropriate clinical management in 1977 and during his defence service.
Relying on the evidence of Dr McCullagh it was submitted that the most likely appropriate diagnosis for the 1977 cyst that was removed was something that was thyroid in origin, Dr McCullagh supporting this view by the nature of the epithelium that was shown by the histopathology. Professor Levi does not significantly differ. This conclusion it was said is supported by the Applicant's recollection of the possibility of thyroid cancer being raised at the initial consultation and the frustration of Dr Martin when the report of pathology was made available. Once accepted that the thyroid was most likely implicated in the cyst further investigation, it is submitted, was warranted. Ultrasound and cat-scan procedures are instanced as what might have been appropriate in the circumstances. The treatment thus indicated as appropriate was not carried out. If the Applicant had a cyst removed for which the thyroid was most likely implicated and for which ongoing treatment in a surveillance sense should have been given then the Applicant did not receive the treatment that he should have. The Applicant maintains that if proper investigation had been made then, especially with a slow developing carcinoma, there was the potential to have that carcinoma picked up at an earlier time or indeed advise the Applicant fully of what should have been done. It is to be noted however that there was no final diagnosis as to the type of cyst the provisional diagnosis having been displaced but not replaced. On behalf of the Commission it was submitted that in 1977 there was a diagnosis of branchial cyst of a particular diameter, in a particular location not of the thyroid gland but well below. The Applicant obtained appropriate medical treatment and having consulted with Dr Martin retained the histopathology report and thereafter underwent regular army examinations and after 1984 regular civilian medical examination. The Applicant experienced no symptoms until 1991 nor did he experience any relevant difficulty or anxiety about his thyroid.
Dr Martin had the benefit of being the surgeon who excised the cyst and making a provisional diagnosis. The histopathology report contained information as to it having been a benign cyst that had been extracted and not a dermoid cyst. He did not recall the Applicant for further scrutiny, this being consistent with the drawing of a satisfactory conclusion that the cyst was a benign growth extracted from well below the thyroid. There is no basis upon which the Tribunal, it is submitted, could conclude that Dr Martin formed any conclusion as to it being a thyroid cyst which had actually been removed. The cyst was not found in the thyroid and there is no reason to think that Dr Martin deliberately left the patient's diagnosis in an unsatisfactory state and simply gave the Applicant the disturbing view that he had been treated for suspected cancer and that nothing more was going to be done for him. The Commission submits that a harmless growth had been removed at that stage and there were no indications warranting further investigation. The Commission submits that what appeared to be a benign cyst was treated by Dr Martin and taken by him to have been a condition which did not require the recall of the Applicant for further scrutiny. Army records note the location of a branchial cyst. Further medical treatment was obtainable in Papua New Guinea and thereafter in Australia. The Applicant had no cause to seek further treatment or attention. There was no reason to suspect that the Applicant had a thyroid condition which required further monitoring and scrutiny.
The Tribunal agrees with the submissions so made on behalf of the Commission. The Applicant was attended by Dr Martin at the Port Moresby General Hospital and received operative treatment considered appropriate and sufficient at that time. He had a later consultation with Dr Martin. He was handed the histopathology report. Thereafter he had regular attendances with army medical personnel and, after his discharge, with civil medical practitioners. He carried with him the histopathology report. He did not make mention to any medical officer of the operative treatment he had received in 1977. The condition that manifested itself in 1991 was ascertained and disclosed by the Applicant.
There were not any facts placed before the Tribunal upon which it could conclude that there had been an inability on the part of the Applicant to obtain appropriate clinical management for the condition. There is no evidence that appropriate clinical management was wanting or that clinical management of any specific kind would have revealed the relevant condition prior to it's being ascertained by the Applicant in 1991.
For the above reasons the Tribunal is not satisfied that the Applicant and more particularly the relevant condition of the Applicant as ascertained in 1991 fell within or falls within the prerequisites of the relevant Statement of Principles.
For these reasons the Tribunal affirms the decision under review.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for the decision herein of:
The Hon Mr R N J Purvis, QC, Deputy President
Signed:         .....................................................................................
  Associate
Dates of Hearing  28 August 2000
Date of Decision  27 October 2000
Counsel for the Applicant               Mr Vincent
Counsel for the Respondent          Ms Henderson