Robson and Repatriation Commission

Case [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:

  1. 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)".

  1. 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.

  2. 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.

  3. 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…

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Details
AGLC
Robson and Repatriation Commission [2000] AATA 940
Case
[2000] AATA 940
Decision Date

CaseChat Overview and Summary

The case of Robson against the Repatriation Commission involved the Applicant, Robson, who sought disability pension and medical treatment under the relevant Act for "cancer of the thyroid." The core dispute centered on whether the cancer was attributable to the Applicant's military service. The matter was brought before the Federal Court of Australia, which was tasked with determining the legal issues surrounding the causation of the thyroid cancer in relation to the Applicant's service.

The primary legal issues before the court were whether the Commission was required to find the cancer war-caused under the Act, and if the Commission could be satisfied beyond reasonable doubt that there were no sufficient grounds to make such a finding. The court had to consider the evidence presented and whether it supported a reasonable hypothesis connecting the Applicant's thyroid cancer with his service. This involved an analysis of the medical evidence, particularly from Dr. Roger Allison, who stated that in the absence of a history of radiation exposure, the cause of thyroid cancer was unknown, and Dr. McCullagh's assertion that both growth stimulation and exposure to a carcinogenic agent were present in the Applicant's case.

The court examined the burden of proof and the standard of evidence required to establish causation. It considered the concept of a reasonable hypothesis as established in prior case law, which required the Commission to be satisfied beyond reasonable doubt that it could not accept the facts supporting the hypothesis. The court found that the medical evidence did not sufficiently support the hypothesis that the Applicant's service was the cause of his thyroid cancer, leading to the conclusion that the Commission was entitled to be so satisfied. Consequently, the court upheld the decision of the Commission that the Applicant's claim for disability pension and medical treatment on the grounds of war-caused thyroid cancer was not substantiated.

The court's decision affirmed the Commission's finding that the Applicant's thyroid cancer was not war-caused, and thus his claim for disability pension and medical treatment under the Act was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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: 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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