Taylor and Repatriation Commission (Veterans' Entitlements) - [2024] ARTA 37

Taylor and Repatriation Commission (Veterans’ Entitlements) [2024] ARTA 37 (22 November 2024)

Applicant/s:  Edith Pamela Taylor
Respondent:  Repatriation Commission
Tribunal Number:                2019/4516

Tribunal:Senior Member McCarthy and Member Ormston
Place:Adelaide
Date:22 November 2024

Decision:The decision under review is affirmed.

.........................[SGND].....................................
Senior Member G McCarthy
..........................[SGND]....................................
Member R Ormston

Catchwords
VETERANS – claim for war widow pension – claim refused because Repatriation Commission and Veterans Review Board not satisfied death was war-caused – application for review to the Administrative Appeals Tribunal – transition of application from AAT to Administrative Review Tribunal – application for review based on two kinds of death: myeloma and renal impairment – death by renal impairment not established on the balance of probabilities – death by myeloma accepted – whether a reasonable hypothesis exists that the veteran’s death by myeloma was war-caused – hypothesis that the death by myeloma was caused by exposure to benzene whilst serving on a ship in World War II – whether hypothesis is reasonable assessed by reference to Statement of Principles concerning myeloma – application of Deledio steps – hypothesis found not reasonable because no relevant and probative evidence the veteran was exposed to benzene for the period at the concentration specified in the Statement of Principles – decision under review affirmed
Legislation
Administrative Review Tribunal Act 2024, s 2
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, section 2, Sch 17
Veterans’ Entitlement Act 1986 (Cth) ss 6, 8, 11, 13, 120, 120A, 196B
Cases
Beezley and Repatriation Commission [2015] FCAFC 165
Bull v Repatriation Commission [2001] FCA 1832
Bushell v Repatriation Commission (1992) 175 CLR 408
Collins v Repatriation Commission [2009] FCAFC 90
East v Repatriation Commission [1987] FCA 242
Ellis v Repatriation Commission [2014] FCA 847
Hamling v Repatriation Commission [1989] FCA
Hill v Repatriation Commission [2009] FCAFC 91
Hill v Repatriation Commission [2005] FCAFC 23
Howard v Repatriation Commission [1999] FCA 1030
Hunter v Repatriation Commission [2010] FCA 145
Kattenberg v Repatriation Commission [2002] FCA 412
Kerns v Repatriation Commission [2022] AATA 357
Re Blake and Military Rehabilitation and Compensation Commission [2016] AATA 434
Re McCall and Repatriation Commission [2006] AATA 1006
Repatriation Commission v Codd [2007] FCA 877 ay [39];
Repatriation Commission v Deledio (1998) FCA 391
Repatriation Commission v Hill [2002] FCAFC 192
Secondary Materials
Department of Veterans’ Affairs SOP Bulletin No. 189, Benzene SOP factors dated 26 June 2023
Statement of Principles concerning MYELOMA No. 69 of 2012
Statement of Principles concerning MYELOMA (Reasonable Hypothesis) No. 95 of 2021
Statement of Principles concerning renal artery atherosclerotic disease (Reasonable Hypothesis) No. 56 of 2021

Statement of Reasons

This application arose from the Applicant’s claim for a war widow’s pension following the death of her husband, Mr Donald Taylor (the Veteran) who served as an officer in the Second World War. The Veteran served in the Australian Army from 4 September 1941 to 11 February 1942 and in the Royal Australian Navy (RAN) from 5 June 1942 to 14 May 1943.
The Veteran was married to the Applicant, Mrs Taylor, for over 72 years.
The Veteran died on 26 May 2018, aged 97 years. His death certificate, alongside the words “Cause of death and duration of last illness” states:
(1) (a) Multiple myeloma, years
(b) Renal impairment, months to years[1]
[1] T documents, T8/21.
On 27 July 2018, Mrs Taylor lodged a claim with the Respondent, the Repatriation Commission (the Commission) for a war widow’s pension. On 28 August 2018, the Commission determined that Mrs Taylor was not eligible for payment of a war widow’s pension because the Veteran’s death was not service-related.[2]
[2] T documents, T5/6.
On 13 September 2018, Mrs Taylor applied to the Commission for a review of its earlier decision. The Commission elected not to conduct the review and instead to allow the review to proceed to the Veterans’ Review Board (the VRB).[3]
[3] T documents, T4/3.
On 29 April 2019, the VRB conducted a hearing to review the decision of the Commission following which it affirmed the decision under review on the grounds that the Veteran’s death was not related to his war service.[4]
[4] Tender bundle, exhibit C, pages 977-981.
In July 2019, Mrs Taylor lodged an application with the (then) Administrative Appeals Tribunal (the AAT) for review of the VRB’s decision (the reviewable decision).
The preparation and hearing of Mrs Taylor’s application was unduly protracted for many reasons culminating in a final hearing on 3 October 2024. The reasons for the delay in resolving this matter are many and varied, none of which involves criticism of the parties, but the delay is nevertheless regrettable.
At the conclusion of the hearing on 3 October 2024, sitting as the Administrative Appeals Tribunal (the AAT), we reserved our decision.
On 14 October 2024, the AAT ceased to exist consequent on commencement of the Administrative Review Tribunal Act 2024 (the ART Act) and repeal of the Administrative Appeals Tribunal Act 1975.[5]
[5] Administrative Review Tribunal Act 2024, section 2; Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, section 2 and Schedule 17.
Commencement of the ART Act included commencement of section 8 of the ART Act pursuant to which the Administrative Review Tribunal (the Tribunal) was established. Pursuant to Part 6, Schedule 2, item 24 of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, “if a proceeding in the AAT is not finalised (however described) before the transition time[6] [as in this case] the proceeding must be continued and finalised by the ART in a manner that the ART considers is efficient and fair.”
[6] "Transition time" is defined in Schedule 16, item 1, to mean the time the Administrative Review Tribunal Act 2024 commenced, meaning 14 October 2024.
By operation of these statutory provisions, we (previously sitting as members of the AAT and now being members of the ART) were statutorily empowered and required to continue this proceeding, and in particular to provide our decision and reasons for decision. We now do so.
LEGISLATIVE FRAMEWORK
Section 8 of the Veterans’ Entitlements Act 1986 (the Act) relevantly provides the following in relation to a war-caused death of a veteran:
(1) Subject to this section and section 9A,[7] for the purposes of this Act, the death of a veteran shall be taken to have been war‑caused if:
(a)the death of the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
[7] Section 9A is not relevant for present purposes.
The Commission accepted the Veteran’s wartime service was “operational service”, as defined in sections 6 and 6A(1) of the Act.
Section 13 of the Act provides that where the death of a veteran was “war-caused”, the Commonwealth is liable to pay compensation to the dependants of the veteran. Section 11 of the Act defines a “dependant” to include a widow and the Applicant in this case.
Where a veteran’s service was operational service, as in this case, sections 120 and 120A of the Act provide a standard of proof and a method for determining whether the veteran’s death was war-caused.
Section 120 relevantly provides:
Standard of proof
(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, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note:  This subsection is affected by section 120A.
..
(3)  In applying subsection   (1) .. 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:
..
(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)
Note:  This subsection is affected by section 120A.
(a)  a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
..
Referring to the notes in section 120, section 120A relevantly provides:
Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(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;
..
(3)  For the purposes of subsection 120(3), a hypothesis connecting … 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. (emphasis added)
...
The words “death” and “kind of death” in sections 8, 13, 120 and 120A mean the medical cause or causes of the death.[8] It requires identification of the cause of death, not in a general way but at an appropriate level of specificity based on a medical diagnosis and other evidence.[9] Determining the cause of death is a question of fact as to the real or operative cause.[10] A medical condition which hastens the time of death where, in medical terms, another medical condition is the medical condition that accounts for the death, is itself not a medical cause of the death.[11] That said, there may be more than one cause of death.[12] Generally, but not always, determining the cause of death is not contentious.[13]
[8] Repatriation Commission v Codd [2007] FCA 877 ay [39]; Collins v Repatriation Commission [2009] FCAFC 90 at [41] and [47].
[9] Hill v Repatriation Commission [2009] FCAFC 91; Collins v Repatriation Commission [2009] FCAFC 90 at [45] and [82].
[10] Hill v Repatriation Commission [2009] FCAFC 91; Collins v Repatriation Commission [2009] FCAFC 90 at [45] and [82].
[11] Collins v Repatriation Commission [2009] FCAFC 90 at [82]; Re Brown and Repatriation Commission [2004] AATA 1010.
[12] Collins v Repatriation Commission [2009] FCAFC 90 at [51].
[13] Ibid at [43].
When determining a claim, the first question is to determine the kind of death of the veteran. That question must be determined “anterior to, and distinct from”[14] the second question, namely whether it was war-caused. Without identifying the kind of death, it is not possible to determine whether there is a reasonable hypothesis that it was war-caused.
[14] Ibid at [42].
Determining the kind or cause of death is not made by applying sections 120 or 120A or any Statement of Principles (SoP) made under section 196B of the Act which apply for the purpose of answering the second question.[15]
[15] Ibid at [47].
For the purpose of determining the second question, where the veteran has rendered “operational service” (as in this case), the Commission shall determine the death was war-caused “unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.”[16]
[16] Veterans’ Entitlements Act 1986, section 120(1).
The Commission “shall be [so] satisfied” if “the material before it does not raise a reasonable hypothesis” connecting the death with the circumstances of the veteran’s service.[17]
[17] Veterans’ Entitlements Act 1986, section 120(3)(c).
For the purpose of determining whether a hypothesis is “reasonable”, if there is a SoP in force in respect of the death, a hypothesis connecting the veteran’s death with their service will be “reasonable” “only if” the SoP “upholds the hypothesis”.[18]
[18] Veterans’ Entitlements Act 1986, section 120A(3).
The so-called “reasonable hypothesis” test was explained in Repatriation Commission v Deledio,[19] where a Full Court of the Federal Court said:
The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proven or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.
The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused … If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.[20]
[19] [1998] FCA 391.
[20] [1998] FCA 391 at 97.
The Full Court’s explanation of how to determine whether a hypothesis is reasonable should not be used in substitution for the legislation,[21] but it usefully identifies four necessary steps for the purpose of deciding whether the hypothesis for why the death was war-caused is reasonable.
[21] Hill v Repatriation Commission [2005] FCAFC 23 at [16] – [17].
The first step requires only a basis of reasoning, without assumption of truth, for why the kind of death was war caused. The reasoning cannot be purely speculative or fanciful. It must take into account known facts and circumstances of the veteran’s case.[22]
[22] East v Repatriation Commission [1987] FCA 242; Hamling v Repatriation Commission [1989] FCA at [14].
The second step is to identify whether there is a SoP in force in respect of the veteran’s kind of death.
If there is a SoP in force, the third step involves application of the SoP to determine whether the hypothesis is reasonable. The hypothesis is reasonable “only if” the SoP “upholds” the hypothesis. The SoP’s purpose is to test the hypothesis, not to examine the correctness of the premises upon which it rests. The task is not to determine whether the evidence establishes the premises on which the hypothesis rests, but rather whether it “points to some fact or facts which support the hypothesis”.[23]
[23] Hunter v Repatriation Commission [2010] FCA 145 at [13].
The fourth step requires a determination that the death was war-caused unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.[24]
[24] Veterans’ Entitlements Act I986, section 120(1).
The Applicant’s claim
In her application to the Commission, the Applicant claimed a war widow’s pension on the basis that her husband’s service caused or contributed to his death “due to his exposure to benzene during service.”[25] She relied on the existence, she said, of factor 6(h) in Statement of Principles concerning MYELOMA No. 69 of 2012 (SOP 69) to contend her hypothesis that the Veteran’s death was war-caused, consequent on his exposure to benzene, was reasonable.
[25] T documents, page 15.
The Commission accepted the Veteran died of multiple myeloma and accepted the Veteran’s myeloma met the definition of “myeloma” in paragraph 3(b) of SOP 69, but declined the claim on the basis it was not satisfied that the Veteran “would have been expected to handle benzene in the quantities and levels of exposure” set out in factor 6(h) of SOP 69.[26] In other words, where at least one of the factors set out in paragraph 6 needed to exist in order for the Applicant’s hypothesis to be reasonable, and there was (the Commission found) no evidence to support the existence of the factor on which the Applicant relied, the hypothesis could not be accepted as reasonable with the result that the claim failed. The VRB affirmed the Commission’s decision.[27]
[26] T documents, page 9.
[27] Exhibit B, tender bundle, pages 980-981.
In her application to the AAT, the applicant continued to rely on the hypothesis that her husband’s death from multiple myeloma, accepted by the Commission, was war-caused and continued to press her claim that the hypothesis was reasonable because, she said, factor 6(h) of SOP 69 existed.
On 20 August 2021, SOP 69 was replaced with a new SoP concerning myeloma: Statement of Principles concerning MYELOMA (Reasonable Hypothesis) No. 95 of 2021 (SOP 95). Nothing turns on this because the words in the factor on which the Applicant relied, factor 6(h), are identical to the words in factor 9(6) in SOP 95. The parties appropriately proceeded by reference to SOP 95, as do we.
On 23 June 2023, the Applicant changed her claim to contend the Veteran died from “renal impairment otherwise known as atherosclerotic disease”, “as well as”[28] multiple myeloma. From there, she contended the Veteran’s kind of death was, in particular, renal artery atherosclerotic disease (meaning, in lay terms, hardening of the renal arteries).[29] She then put forward a hypothesis as to why the Veteran’s renal artery atherosclerotic disease caused or contributed to his death. She then contended the hypothesis was reasonable because, she said, the statement of principles concerning renal artery atherosclerotic disease, Statement of Principles concerning renal artery atherosclerotic disease (Reasonable Hypothesis) No. 56 of 2021 (SOP 56) upheld the hypothesis.
[28] Applicant’s further submission dated 23 June 2023 at [8].
[29] Transcript of proceedings, 3 October 2024, page 25, lines 16-19.
The Applicant’s submission that the Commission and then the VRB erred by not considering and finding renal artery atherosclerotic disease to be a kind of death suffered by the Veteran, or that that disease contributed to a terminal event or condition, is unfair. Neither the Commission nor the VRB was ever asked to do so. Neither renal impairment nor renal artery atherosclerotic disease was raised. The Applicant’s claim for a pension to the Commission and, on review by the VRB, was made solely by reference to the Veteran’s accepted kind of death: myeloma.
Before the Tribunal, the Commission submitted we could not be satisfied on the balance of probabilities that the Veteran’s kind of death was renal impairment or renal artery atherosclerotic disease, such that the question whether the claimed kind of death was war-caused did not arise. The Commission submitted that, accordingly, SOP 56 was not applicable.
Where the Applicant was now claiming a war pension by reference to two different kinds of death, and where the Applicant was able do so (notwithstanding her not previously doing so) by reason of the Tribunal conducting a review of the decision on the merits, we deal with each claimed kind of death in turn.
Renal impairment

In support of the additional claimed kind of death, the Applicant relied primarily on the Veteran’s death certificate which states the Veteran’s cause of death (in addition to multiple myeloma) “renal impairment, months to years” to evidence renal impairment as a cause of the Veteran’s death. From there, the Applicant drew on pieces of the Veteran’s medical history, particularly his accepted coronary atherosclerosis, to contend his renal impairment was (or was caused by) renal atherosclerosis and, in particular, “renal artery atherosclerotic disease” as defined in section 7(2) of SOP 56 which in turn, she said, engaged SOP 56.
For the purpose of SOP 56, renal artery atherosclerotic disease is defined in section 7 of SOP 56, which states:
7. Kind of injury, disease or death to which this Statement of Principles relates
(1) This Statement of Principles is about renal artery atherosclerotic disease and death from renal artery atherosclerotic disease
Meaning of renal artery atherosclerotic disease
(2) for the purposes of this Statement of Principles, renal artery atherosclerotic disease means artherosclerosis of the renal arteries which causes a partial or complete collusion of a renal artery and either:
(a) warrants medical treatment; or
(b) results in at least one of the following clinical manifestations:
(i) moderate to severe hypertension;
(ii) poorly controlled hypertension;
(iii) persistent renal impairment;
(iv) acute pulmonary oedema; or
(v) chronic heart failure.
To establish the Veteran suffered from renal artery atherosclerotic disease, the Applicant relied on a report dated 1 August 2024 from Dr Hellestrand, the Veteran’s cardiologist, in which Dr Hellestrand states the Veteran developed coronary atherosclerosis, meaning hardening of his coronary arteries, which led to him requiring a coronary artery bypass grafting in 2002. That medical history was not disputed. The Applicant then relied on Dr Hellestrand’s opinion in his report regarding atherosclerosis as follows:
[Mr Taylor] clearly had multiple reasons for developing atherosclerosis, including his many years of smoking, his hypertension and his elevated lipid profile. This was clearly the background behind his requiring coronary artery bypass grafting in 2002.
It is a very reasonable conclusion to suggest that his atherosclerosis involved not only his coronary arteries, but also arteries throughout his vascular system, and that would include his renal arteries.
It is a very reasonable conclusion to say that his renal artery atherosclerotic disease is in part a manifestation of his general atherosclerosis related to those risk factors mentioned above.
It is also well-known multiple myeloma can cause renal impairment and even renal failure.
Obviously it is sometimes difficult to separate these two but on the basis of his known severe atherosclerosis involving his coronary arteries, I think it is a very reasonable conclusion to say that his renal artery atherosclerosis is related to those risk factors and probably has no bearing on multiple myeloma, which usually involves the kidneys directly and does not promote atherosclerosis.[30]
[30] Exh A3, letter dated 1 August 2024 from Dr Kevin Hellestrand to the Applicant.
The Applicant acknowledged there was no direct evidence as to why the Veteran’s kidney functioning was impaired, and that the “high point” of the evidence was Dr Hellestrand’s suggested “reasonable conclusion” that the atherosclerosis found in the Veteran’s coronary arteries likely extended throughout his vascular system including his renal arteries.[31] The Applicant relied also on the substantial medical evidence regarding the Veteran’s significant coronary artery disease to support the strength of that conclusion.[32]
[31] Transcript of proceedings, 3 October 2024, page 26 lines 8 - 35.
[32] Applicant's response to Respondent's further statement of facts, issues and contentions dated 4 October 2024 at [9].
Referring to the definition of “renal artery atherosclerotic disease” in section 7(2) of SOP 56, the Applicant submitted that “common sense” suggests that if you have ischaemic disease, meaning inadequate blood supply or circulation to an area due to blockage of the blood vessels supplying that area, “there’s going to be some narrowing of the arteries either by hardening of the arteries or plaque”.[33]
[33] Ibid at [7].
The Applicant noted it is not possible to obtain an angiogram of the Veteran’s renal arteries to demonstrate narrowing of them, but submitted that should not count against that conclusion being drawn. She relied on section 119(1)(h) of the Act, which provides that in making a decision in relation to a review of a decision with respect to a pension, the Commission “shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to the effects of the passage of time”.
The Applicant also relied on a report dated 6 December 2023 from Dr Stangenberg, nephrologist (meaning a physician who specialises in kidney function) who saw the Veteran on 13 October 2017. Dr Stangenberg stated that atherosclerotic disease in the kidney is “likely” in a 94 year old, meaning the Veteran.
Referring to paragraph 7(2)(b) of the definition, the Applicant submitted this was met because the Veteran had at least three of the “clinical manifestations” of renal artery atherosclerotic disease, namely hypertension, persistent renal impairment and chronic heart failure, when only one is required.[34]
[34] Ibid at [18].
The Commission submitted there was no evidence to support a finding that the Veteran suffered from renal artery atherosclerotic disease, as defined in SOP 56.[35] It appropriately acknowledged the Veteran suffered from renal impairment, hypertension and (in April 2018 a month before he died) congestive heart failure,[36] but submitted there was no “probative evidence” that any of these factors were, in his case, clinical manifestations of renal artery atherosclerotic disease.[37]
[35] Respondent's further statement of facts, issues and contentions dated 2 October 2024 at [25].
[36] Ibid at [24].
[37] Ibid at [25].
The Commission relied on a referral letter dated 26 September 2017 from Dr Jane Freeman, haematologist (meaning a doctor who specialises in the treatment of diseases affecting a person’s blood, bone marrow and lymphatic system) to Dr Stangenberg. In her letter, Dr Freeman referred to the Veteran’s diagnosis as -
multifactorial anaemia with a degree of chronic renal impairment in the context of myeloma and zoledronic acid.[38] (emphasis added)
[38] Exhibit R5.
The Commission also relied on Dr Stangenberg’s report dated 6 December 2023 in which she stated that when she saw the Veteran on 13 October 2017 he had “chronic kidney disease stage 3” and that “from early 2018 until the time of his death in May 2018 he had progressively worsening renal function”. Dr Stangenberg concluded:
In this case I feel that myeloma involvement of the kidney is very likely although I cannot exclude other aetologies without knowing the full history. While underlying small vessel atherosclerotic disease in the kidney is likely in a 94 year old, it is unlikely to have caused the rapid deterioration in renal function.[39] (emphasis added)
[39] Exhibit R4.
The Commission contended that whilst the Veteran’s renal impairment is well documented, there is no evidence that it was “a form of atherosclerosis”,[40] meaning (as we understood it) there is no evidence that the renal impairment should be attributed to renal artery atherosclerotic disease. The Commission relied on Dr Hellestrand’s opinion that “myeloma involvement of the kidney is very likely”, and renal artery atherosclerotic disease is “unlikely” to have caused the rapid deterioration in renal function.
[40] Respondent's further statement of facts, issues and contentions dated 2 October 2024 at [29].
The Commission noted that in her letter to Dr Hellestrand, the Applicant asked “Is it not a reasonable hypothesis that [the Veteran’s] atherosclerosis which led to his ischaemic heart disease also affected [the Veteran’s] renal arteries and hence caused his renal impairment”. In his report in reply, Dr Hellestrand acknowledged the likelihood of renal atherosclerosis but did not suggest it as a cause of the Veteran’s renal impairment. Regarding cause of the renal impairment, Dr Hellestrand stated only it is “is well known that multiple myeloma can cause renal impairment and even renal failure”.
The Commission also submitted there is no evidence that the Veteran’s renal artery atherosclerotic disease (if it existed) caused a partial or complete occlusion of a renal artery or that it warranted medical treatment or that it resulted in poorly controlled hypertension, persistent renal impairment or chronic heart failure, to adopt words from the definition in SOP 56.[41]
[41] Respondent's further statement of facts, issues and contentions dated 2 October 2024 at [29].
In reply, the Applicant challenged the Commission’s contention that there is “no evidence” to support a finding that the Veteran suffered from renal artery atherosclerotic disease. She relied on the passage in Dr Hellestrand’s report quoted above that this disease was “likely” and medical evidence of the Veteran suffering from at least three of the listed clinical manifestations of it.[42]
[42] Applicant's response to Respondent's further statement of facts, issues and contentions dated 4 October 2024 at [3] – [13].
In reply to the opinion of Dr Stangenberg (in her report) that the Veteran’s multiple myeloma was a likely contributor to his renal impairment, the Applicant acknowledged that to be so but contended that does not mean, she said, the Veteran’s likely renal artery atherosclerotic disease did not also contribute to the renal impairment which, she said, was a cause of death. The Applicant drew on paragraph 7(5) of SOP 56 which provides:
Death from renal artery atherosclerotic disease
(5) For the purpose of this Statement of Principles, renal artery atherosclerotic disease, in relation to a person, includes death from a terminal event or condition that was contributed to by the person’s renal artery atherosclerotic disease. (emphasis added)
Consideration of renal impairment
We begin with the Applicant’s submission that a kind of death suffered by the Veteran was renal impairment. True, the death certificate states as much but a finding of fact about the Veteran’s kind of death must be decided on the balance of probabilities having regard to the whole of the evidence.
Words on a death certificate are prima facie, but not conclusive, evidence of the cause of death. The whole of the evidence needs to be considered. Other evidence, particularly medical evidence, may cause the Tribunal to find the cause of death or kind of death to be something not stated on the death certificate.[43] Alternatively, it might not be satisfied it is something stated on the death certificate.
[43] Hill v Repatriation Commission [2009] FCAFC 91 at [65]; Re McCall and Repatriation Commission [2006] AATA 1006.
In this case, many factors weigh against a finding that a cause of the Veteran’s death was renal impairment. No direct evidence supports the words on the death certificate.
First, there is the report of Dr Ian, medical advisor, dated 22 August 2018, written three months after the Veteran’s death stating “from the death certificate the primary cause of death was multiple myeloma… complicated by renal impairment”. In other words, Dr Ian understood from the death certificate that the cause of death was multiple myeloma even if renal impairment ‘complicated’ the death by that cause. That does not mean renal impairment was, itself, a cause of the death.
Dr Ian’s understanding is consistent with the death certificate referring to “renal impairment”, not “renal failure”, meaning the Veteran’s kidney functioning was impaired but had not failed. Dr Ian’s statement is also consistent with Dr Hellestrand’s comment that “multiple myeloma can cause renal impairment and even renal failure” (emphasis added), meaning there is a distinction between renal impairment and renal failure - the latter being much more serious.
Then there are problems with the Applicant’s linkage of the Veteran’s renal impairment with the Veteran’s likely renal atherosclerosis. Confusion arises from the Applicant’s intermingling of renal impairment with renal artery atherosclerotic disease. Her contention that one is “otherwise known”[44] as the other is not correct. The submission confuses cause with effect. As the Applicant later acknowledged,[45] renal artery atherosclerotic disease is one of many possible causes of renal impairment, but one is not the other.
[44] Applicant’s further submission dated 23 June 2023 at [8].
[45] Transcript of proceedings, 3 October 2024, page 25, lines 24-30.
We accept Dr Hellestrand’s likely conclusion (supported by Dr Stangenberg) that, by reason of the Veteran’s atherosclerosis in his coronary arteries, atherosclerosis was likely throughout his vascular system including his renal arteries, but it does not follow that the likely renal atherosclerosis caused or contributed to renal impairment of such severity that it caused his death. The Applicant acknowledged,[46] there is no direct evidence that renal atherosclerosis caused the Veteran’s renal impairment. In particular, notwithstanding being asked, Dr Hellestrand did not state it did. In our view, the likely atherosclerosis throughout his vascular system including his renal arteries is something the Veteran had likely been living with for many years in addition to many other ailments.
[46] Ibid page 26, lines 8 - 35.
Having regard to all the evidence, we were unable to find on the balance of probabilities that renal impairment was a cause of the Veteran’s death.
Where we were not satisfied a kind of death suffered by the Veteran was renal impairment caused by renal atherosclerosis or otherwise, the second question, namely whether that kind of death was war-caused, did not arise.
However, even if we were to accept that a kind of death suffered by the Veteran was renal impairment, that does not, by itself, engage SOP 56 which addresses (per section 7) death from “renal artery atherosclerotic disease”, as defined in section 7(2).
Here too, the Applicant’s hypothesis struck problems.
For example, whilst we accept Dr Hellestrand’s evidence that the Veteran likely suffered from renal atherosclerosis, there is no evidence that it was of such severity that it caused “a partial or complete occlusion of a renal artery”. True, there is clear evidence of ischaemic heart disease[47] (meaning a narrowing or blockage of the coronial arteries), but that does not mean a blockage of his renal arteries nor should it be inferred. The Applicant contended “common sense” suggests if you have ischaemic disease then “there is going to be some narrowing of the arteries”. True enough, in relation to coronary arteries arising from ischaemic heart disease but there is no evidence of ischaemic disease in his renal arteries from which a partial or complete occlusion of a renal artery could be inferred. A hardened renal artery is a very different proposition to a blocked or partially blocked renal artery. There is the expert opinion evidence of Dr Hellestrand for the former, but no evidence of the latter.
[47] Applicant's response to respondent's further statement of facts, issues and contentions dated 4 October 2024 at [8].
Regarding paragraph 7(2)(a) of the definition, there was no evidence or suggestion that the atherosclerosis of the Veteran’s renal arteries warranted medical treatment.
Regarding paragraph 7(2)(b) of the definition, there was a need for evidence to support a hypothesis that the atherosclerosis of the renal arteries “result[ed] in” one of the listed “clinical manifestations”. Whilst we accept there is evidence that the Veteran suffered from hypertension, persistent renal impairment and chronic heart failure, being three of the listed “clinical manifestations”, there is no evidence to support a hypothesis that renal artery atherosclerotic disease “result[ed] in” any of these clinical manifestations. The Applicant confuses the definition by taking the manifestations and contending that because the Veteran displayed them it should be inferred they resulted from renal artery atherosclerotic disease. We disagree. These manifestations could have resulted from any number of ailments.
The Veteran’s hypertension could have resulted from any number of causes. There is no evidence to support a hypothesis that renal artery atherosclerotic disease was the cause. There is also evidence to the contrary. As the Applicant pointed out, the Veteran developed hypertension in 1995 - 12 years prior to when he first saw Dr Hellestrand in relation to his coronary disease.[48] There is no evidence to suggest the existence of atherosclerotic disease, whether renal or generally, in 1995 which indicates that whatever the cause of the hypertension it was not renal artery atherosclerotic disease.
[48] Transcript of proceedings, 3 October 2024, page 21, line 10.
Regarding the Veteran’s renal impairment, according to Dr Stangenberg the Veteran’s myeloma was “very likely” involved with his chronic kidney disease but his likely atherosclerosis in his kidney is “unlikely to have caused the rapid deterioration in renal function”.[49] In other words, the evidence does not support a hypothesis that the Veteran’s likely atherosclerosis of his renal arteries, which he had likely had for years, “result[ed] in” persistent renal impairment, and there is evidence that it did not.
[49] Report of Dr Stangenberg dated 6 December 2023.
The Veteran’s chronic heart failure almost certainly resulted from the atherosclerosis of his coronary arteries. There is no evidence it resulted from atherosclerosis of his renal arteries.
We recognise that pursuant to section 7(5) of SOP 56 it is not necessary to find the Veteran’s cause of death was renal artery atherosclerotic disease: for that to have contributed to a terminal event or condition is enough. However, that does not assist the Applicant’s case because, even if he had the disease and even if it contributed to the renal impairment, we are not satisfied that renal impairment was a terminal event or condition.
The Applicant’s submitted, apparently in the alternative, that because the Veteran’s death by myeloma was “complicated by renal impairment”,[50] SOP 56 is engaged pursuant to section 7(5). The submission is misconceived. Even if “complicated by” were to be treated as “contributed to” and we were to accept the Veteran’s death by myeloma was contributed to by his renal impairment, that does not engage SOP 56 because, contrary to the Applicant’s submission, renal impairment is not the same as, or otherwise known as, renal artery atherosclerotic disease. Section 7(5) is concerned with a terminal condition contributed to by a person’s renal artery atherosclerotic disease. There is no evidence that that disease (if it existed) contributed to the Veteran’s death by myeloma and Dr Hellestrand states the disease “probably has no bearing on multiple myeloma”.
[50] Transcript of proceedings, 3 October 2024, page 62, lines 1-11.
For these reasons, we were not satisfied that renal artery atherosclerotic disease, as defined, existed or, if it did, that it contributed to the Veteran’s death by myeloma.
MULTIPLE MYELOMA
We turn to the Applicant’s initial submission that the Veteran died from multiple myeloma and whether there is a reasonable hypothesis that his death from multiple myeloma was war-caused.
The Commission accepts the Veteran’s kind of death was multiple myeloma. On the evidence, we agree and find accordingly.
We move to the second question, namely whether there is a ‘reasonable hypothesis’ that the death by myeloma was war-caused per the four steps set out in Deledio.
Step 1: does the material point to a hypothesis connecting the Veteran’s death with his service

The Veteran’s operational service during World War II included about 194 days aboard HMAS Tolga, a RAN auxiliary minesweeper and water and stores carrier based primarily in Darwin from October 1942 to May 1943.
The Applicant contended for a hypothesis that the Veteran was exposed to and inhaled benzene whilst aboard HMAS Tolga from three different sources which led to his death 67 years later.
First, she noted HMAS Tolga was powered by coal-fired engines. It was common ground the engines produced exhaust fumes which contained benzene and other organic emissions. The Applicant contended the Veteran would likely have been exposed to and inhaled some of these emissions.
Second, the Applicant contended the Veteran would likely also have been exposed to benzene particles and fumes associated with periodic repainting of the ship. It was common ground that paint strippers commonly used in the 1940s contained high levels of benzene.[51]
[51] Exhibit B, T-Documents, A14, Report by Dr Philip Beeby dated 23 November 2021, page 6 and Exhibit C, Joint Tender Bundle, Document 1, Department of Veterans’ Affairs SOP Bulletin No. 189, Benzene SOP factors, dated 4 April 2016, page 975, noting there is an updated version dated 26 June 2023.
Third, the Applicant relied on the Veteran developing a heavier smoking habit during his service, notwithstanding him being a smoker prior to commencing his war service, and that a great majority of those on the ship smoked. It was common ground that cigarette smoke was a likely (albeit small) source of benzene exposure.[52]
[52] Exhibit C, Joint Tender Bundle, Document 1, Department of Veterans’ Affairs SOP Bulletin No. 189, Benzene SOP factors, dated 4 April 2016, page 974, noting that there is an updated version dated 26 June 2023.
While the cause of multiple myeloma is largely unknown, the Department of Veterans’ Affairs has included myeloma on a list of diseases where exposure to benzene may be a causal or contributing factor.[53]
[53] Exhibit C, Joint Tender Bundle, Document 1, Department of Veterans’ Affairs SOP Bulletin No. 189, Benzene SOP factors, dated 4 April 2016, page 972.
A hypothesis is a proposition made as a basis for reasoning, without assumption of its truth, or a supposition made as a starting point for further investigation from known facts.[54]
[54] Bull v Repatriation Commission [2001] FCA 1832 at [17]) and [38].
We were satisfied the evidence supports a hypothesis connecting the Veteran’s death from myeloma to circumstances of his service, namely exposure to benzene. Accordingly, we were satisfied step 1 of the Deledio test is met.
Step 2: is there an applicable SoP?
For the purpose of determining whether the hypothesis is reasonable, the parties accepted, as do we, that there is an applicable SoP: SOP 95.
Step 3: does SOP 95 uphold the hypothesis?
The parties accepted, as do we, that the Veteran’s kind of death was “myeloma”, as defined in section 7(2) of SOP 95.
Pursuant to section 9 of SOP 95, before it can be said that a reasonable hypothesis has been raised connecting the Veteran’s death from myeloma with the circumstances of his service, at least one of the factors set out in section 9 must exist.
The Applicant submitted the factor set out in section 9(6) exists.
No other factor was relied on by the Applicant. Having reviewed the remaining factors against the evidence, we see no evidence to support the existence of any other factor.[55]
[55] In the course of the hearing of the application, the prospect was raised that the factor set out in section 9(7) also exists. The respondent contended it did not and, at hearing on 3 October 2024, the applicant agreed it was not met and can be put aside: transcript of proceeding, 3 October 2024, page 17, lines 19-33. In our view, the applicant’s concession was properly made
Section 9(6) of SOP 95 provides:
9 Factors that must exist
At least one of the following factors must cease before it can be said that a reasonable hypothesis has been raised connecting myeloma or deaths from myeloma with the circumstances of a person’s relevant service:
..
(6) being exposed to benzene as specified:
(a) for a cumulative total of at least 2,500 hours within a continuous period of 5 years before the clinical onset of myeloma; and
(b) where the first exposure in that period occurred at least 5 years before the clinical onset of myeloma;
Note: being exposed to benzene as specified is defined in the Schedule 1-Dictionary.
As stated in the note to factor 9(6), the words “being exposed to benzene as specified” in factor 9(6) are defined in Schedule 1 - Dictionary to SOP 95 as follows:
being exposed to benzene as specified means:
(a) having cutaneous contact with liquids containing benzene greater than 1% by volume; or
(b) ingesting liquids containing benzene greater than 1% by volume; or
(c) inhaling benzene vapour where such exposure occurs at an ambient 8-hour time-weighted average benzene concentration exceeding 5 parts per million.
The words “8-hour time -weighted average” in the above definition are defined in Schedule 1 - Dictionary to SOP 95 as follows:
8-hour time-weighted average means the averaging of different exposure levels to benzene during an average exposure equivalent to 8 hours.
Every element of factor 9(6), which incorporates the defined terms, must be consistent with the raised facts.[56]
[56] Howard v Repatriation Commission [1999] FCA 1030
Section 10(1) of SOP 95 provides:
10 Relationship to service
(1)The existence in a person of any factor referred to in section 9, must be related to the relevant service rendered by the person.
In other words, pursuant to section 10(1), the raised facts on which the Applicant relies for the purpose of claiming factor 9(6) exists must be facts related to the Veteran’s service.
The Applicant’s contentions
The Applicant contended the Veteran spent the majority of each of the 194 days in question on board HMAS Tolga. For most of that time, the ship was berthed and operated within Darwin Harbour. It undertook a two-month deployment to Cairns in October 1942, where it operated as a water and stores carrier between Cairns and Thursday Island. She returned to Darwin in late December 1942.[57]
[57] Exhibit C, Joint Tender Bundle, A8, Navy document regarding HMAS Tolga, dated 30 May 2020, pages 787-797.
It is common ground that Darwin and the ships and facilities in its harbour were under constant threat of air attack from Japanese forces in 1942 and 1943.[58] The Applicant contended this meant the Veteran was required to be on board at all times to assist in manning the ship and/or moving it at short notice, either to evade attack, assist other ships or take account of tidal changes.[59]
[58] The military situation was included in a report by Major Ian Hawke, dated 6 February 2020, at Exhibit C, Joint Tender Bundle, A5, paragraphs 9-10, page 772.
[59] Applicant’s Further Amended Statement of Facts and Contentions, dated 15 September 2024 at [4]; transcript of proceeding, 29 November 2022, page 20, lines 12-19.
The Applicant contended the Veteran’s duties included oversight of the loading of stores and coal, watch-keeping and censoring the crew’s correspondence. Most of the available information regarding the Veteran’s duties derives from letters sent at the time by the Veteran to his wife, the Applicant, almost all of which were understandably devoid of operational details because of wartime censorship requirements.[60]
[60] Copies of these letters are at Exhibit D, Amended Supplementary Joint Tender Bundle, pages 998-1087.
Regarding factor 9(6)(a), the Applicant contended that because the Veteran was exposed to benzene emissions almost constantly for the 194 days of his service on board HMAS Tolga, he readily met the 2,500-hour cumulative total requirement.[61]
[61] Applicant’s Further Amended Statement of Facts and Contentions, dated 15 September 2024 at [17].
The Applicant relied on[62] the so-called the ‘material contribution test’ in section 196B(14)(d) of the Act which provides:
A factor causing or contributing to … a death is related to service rendered by a person if:
..
(d) it was contributed to in a material degree by, or was aggravated by, that service;[63]
[62] Applicant’s Further Amended Statement of Facts and Contentions, dated 15 September 2024 at [18] - [19].
[63] See generally Kattenberg v Repatriation Commission [2002] FCA 412 at [8] – [9].
With reliance on section 196B(14)(d), the Applicant submitted it is not necessary for the entire exposure to benzene to be caused by the Veteran’s service. It is enough if the exposure was “contributed to in a material degree” by that service.[64]
[64] Applicant’s Further Amended Statement of Facts and Contentions, dated 15 September 2024 at [19].
The Applicant argued the Veteran’s “service caused exposure to benzene was more than a trivial contribution to the entire exposure requirement and therefore service exposure to benzene is a material contribution”.[65]
[65] Ibid at [9] and [19].
Dr Beeby, the Applicant’s son-in-law, suggested that because the Veteran’s 20+ years of exposure to benzene through smoking subsequent to his war service could be ascribed to becoming addicted to smoking during his service, his war service exposure constituted a ‘material contribution’ to his overall exposure to benzene.[66]
[66] Exhibit B, T-Documents, A14, Report by Dr Philip Beeby, dated 23 November 2021, page 3.
Regarding factor 9(6)(b), there is no dispute the Veteran was first exposed to benzene “at least 5 years before the clinical onset of myeloma”. On the evidence, the onset was some 60 years after the Veteran completed his war service.
Regarding “exposure to benzene as specified” as defined, the Applicant did not contend for exposure to benzene liquids per paragraphs (a) and (b) of the definition. There was no evidence of such exposure. The Applicant relied on paragraph (c).
The Applicant acknowledged that the definitional requirement of an average exposure concentration of 5 ppm during an average exposure equivalent to 8 hours is difficult to quantify in relation to the Veteran.[67] The Applicant relied on Dr Beeby’s evidence in his report dated 23 November 2021 that the concentration of benzene in the vicinity of burning coal may be in the range of 0.2 to 2.0ppm depending on the coal type and the distance from the fire, although Dr Beeby went on to say in his report that “it is impossible to prove or disprove that a hazardous level of benzene was present.”[68]
[67] Applicant’s Further Amended Statement of Facts and Contentions, dated 15 September 2024 at [21].
[68] Exhibit B, T-Documents, A14, Report by Dr Philip Beeby, dated 23 November 2021, 1^st paragraph, page 3.
The Applicant acknowledged there is no direct evidence about the Veteran’s exposure to smoke from the ship’s engines but submitted it was an inference that should be drawn from the ship being powered coal-fired engines and that smoke came out of the engine room.[69]
[69] Transcript of proceeding, 3 October 2024, page 37, line 44 – page 38, line 6.
The Applicant also submitted the Veteran’s exposure met paragraph (c) of the definition, not in terms but by contending, with reliance on Dr Beeby’s evidence, that the required exposure level of 5 ppm is (in the Veteran’s case) is “inappropriate”[70] and “can’t be applied”[71] because the ‘8-hour test’ is “designed around an employed person working 8-hour shifts followed by 16 hours recovery 5 days/week”, unlike the Veteran who “didn’t go home after his watch [but] remained on board and exposed 24/7”.[72]
[70] Exhibit B, T-Documents, A14, Report by Dr Philip Beeby, dated 8 June 2023 at [10].
[71] Applicant’s Further Amended Statement of Facts and Contentions, dated 15 September 2024 at [4].
[72] Ibid.
In terms of assessing the seriousness of the Veteran’s exposure to benzene, the Applicant noted the engines on HMAS Tolga “were kept running 24 hours a day, 7 days a week” such that the Veteran’s exposure was “24 hours/day for 7 days/week.”[73]
[73] Ibid.
The Applicant (and Dr Beeby) contended that when exposure is limited to 8 hours per day followed by a 16 hour recovery and then a whole weekend of recovery, outcomes are less severe “compared to longer periods of exposure where there is less opportunity for recovery”. Dr Beeby then offered a mathematical formula, drawing on a publication “Guidance on the interpretation of workplace exposure standards for airborne contaminants” published by Safe Work in Australia, 2013 (the Guideline), to submit that if one “supposes” the Veteran’s exposure was 20 hours per day, “the adjusted exposure standard [required by the definition] becomes .5ppm”. Using that adjusted standard, Dr Beeby said “it is quite possible” the Veteran “experienced an exposure of this order”.[74]
[74] Exhibit B, T-Documents, A14, Report by Dr Philip Beeby, dated 23 November 2021, 3^rd paragraph, page 4
Dr Beeby has a PhD in organic chemistry and is a Fellow of the Royal Australasian College of Physicians.
Dr Beeby relied on methodologies cited in the Guideline to compensate for exposure extending beyond 8 hour/5 day shifts. He cited, for example, the ‘Brief and Scala’ formula, used by Work Safe Australia and the Australian Institute of Industrial Hygienists, which, he said, – using an estimated exposure of 20 hours across 7 days – would reduce the required ‘5 parts per million figure’ to 0.31 parts per million.[75] Why that would be so was not explained or evidenced.
[75] Exhibit A1, Report by Dr Philip Beeby, dated 14 July 2024, page 1
The result, he said, “is that exposure to benzene for 8hr/day at 5ppm for 5 days/week is equivalent to 0.31ppm for 20hrs/day for 7 days/week.”[76] 0.31ppm, he said, is obviously within the range of what he said is the usual concentration of benzene from burning coal.
[76] Exhibit A1, Report by Dr Philip Beeby, dated 8 June 2023, paragraphs 10-12, page 3
The Applicant also contended the Veteran’s exposure to benzene needed to take into account the Veteran’s heavy smoking habit and his exposure to passive smoking from others, as well as from particles and fumes associated with repainting the ship.[77] Dr Beeby contended “there is widespread evidence [of] an interaction between tobacco use and exposure to other agents … [and that] in multiple diseases, outcomes are worse in smokers”.[78] Dr Beeby also contended that “health outcomes following exposure to benzene vary significantly according to one’s genetic inheritance” and that SOP 95’s “assumption that everyone carries the same susceptibility … disadvantages those who are more susceptible as is the case here”.[79]
[77] Applicant’s Further Amended Statement of Facts and Contentions, dated 15 September 2024 at [17].
[78] Exhibit B, T-Documents, A14, Report by Dr Philip Beeby, dated 23 November 2021, 1^st paragraph, page 2.
[79] Ibid.
Although smoking is not mentioned as a factor in SOP 95, the Applicant contended the Veteran was a ‘heavy smoker’ and that his resultant exposure to benzene from his own smoking and the smoking of others while on board HMAS Tolga could have been 0.07 ppm, which would have further reduced the adjusted standard from 0.31 ppm to 0.24 ppm.[80] Dr Beeby acknowledged “there is no way of knowing [the Veteran’s] actual exposure to benzene from the ship fumes” but contended “it could well be at this level (meaning 0.24ppm), being a coal powered vessel, larger than a steam train.”[81]
[80] Exhibit A1, Report by Dr Philip Beeby, dated 8 June 2023, paragraph 12, page 3.
[81] Report by Dr Philip Beeby, dated 8 June 2023, at [13].
The Applicant’s contentions regarding the Veteran’s benzene exposure related to repainting were made with reliance on brief reference to letters from the Veteran noting that repainting was being undertaken at various times and the assertion in a report by Dr Beeby that paint strippers prior to 1970 commonly contained up to 50% benzene.[82]
[82] Exhibit B, T-Documents, A14, Report by Dr Philip Beeby dated 23 November 2021, page 6.
The Respondent’s contentions
Th Respondent contended there is no evidence to support the Applicant’s claim that the Veteran was exposed to benzene fumes for the duration and level required by SOP 95.[83] The Respondent also contended the hypothesis for a causal connection between a disease, in this case myeloma, and the circumstances of service cannot be determined by reference to anything other than the factors set out in the applicable SoP, and factor 9(6) of SOP 95 in this case.[84] In particular, neither the Tribunal nor the parties nor a witness (in this case, Dr Beeby) or anyone else can “create a reasonable hypothesis”.[85] The Respondent submitted that what will or will not be accepted as a reasonable hypothesis has essentially been delegated to the Authority, which prepares SoPs and determines the criteria that must be met for a hypothesis to be reasonable.
[83] Respondent’s Statement of Facts, Issues and Contentions, dated 6 December 2022 at [41].
[84] Ibid at [30]
[85] Transcript of proceeding, 3 October 2024, page 40, lines 37-46.
With reference to section 120(6) of the Act, the Respondent acknowledged there is no onus on a claimant or the Commonwealth to prove any relevant matter, but emphasised that whether the criteria for a reasonable hypothesis are met must be based on relevant and probative material.[86] Whether the criteria are met must be based on more than speculation[87] or possibility.[88] The material must raise all of the essential elements prescribed by, in this case, SOP 95.[89] The Tribunal cannot infer or assume that the essential elements of a hypothesis are met.[90] The Respondent relied on the decision of Member Frost in Kerns v Repatriation Commission in which the relevant principles of law are noted and summarised.[91]
[86] Beezley and Repatriation Commission [2015] FCAFC 165 at [68].
[87] Re Blake and Military Rehabilitation and Compensation Commission [2016] AATA 434 at [6].
[88] East v Repatriation Commission [1987] FCA 242 at [42].
[89] Repatriation Commission v Hill [2002] FCAFC 192 at [55].
[90] Ellis v Repatriation Commission [2014] FCA 847 at [63].
[91] [2022] AATA 357 at [80] – [85].
The Respondent referred to the evidence of Mr Patel, an occupational hygienist, who noted there is no detailed information available regarding the Veteran’s specific duties on board HMAS Tolga. While accepting the Applicant’s claim that the Veteran spent most of his work shift on the main deck, in his cabin or in the navigation room, Mr Patel said it is “difficult to conclude the nature and extent of potential benzene exposure to [the Veteran] onboard HMAS Tolga”.[92]
[92] T-Documents, R1, Report by Mr Patel, dated 24 May 2022, paragraph 3.2, page 951.
Mr Patel further commented there was “no specific exposure monitoring data available to determine the extent of [the Veteran’s] exposure to benzene from his service on board HMAS Tolga”.[93] He added that his literature search “did not yield any specific data regarding exposure to benzene on similar coal-fired steam vessels” and “therefore it is difficult to conclude the nature and extent of [the Veteran’s] exposure to benzene”.[94]
[93] T-Documents, R1, Report by Mr Patel, dated 24 May 2022, paragraph 3.2, page 951.
[94] T-Documents, R1, Report by Mr Patel, dated 24 May 2022, paragraph 3.2, page 951.
While acknowledging that benzene emissions are produced from burning coal, Mr Patel opined that “benzene is relatively a minor component in the flue gases generated” from the combustion of coal.[95] He was also “of the strong opinion that the benzene levels on the main deck and accommodation areas originating from [the funnel] should be low … and that even a small amount of ‘fugitive emissions’ would tend to rise and be dispersed”.[96] Mr Patel also suggests the main deck and navigation office areas on the ship, where the Veteran likely worked, were “generally considered well-ventilated and … away from the engine room”.[97]
[95] T-Documents, R1, Report by Mr Patel, dated 24 May 2022, paragraph 3.2.2, page 953.
[96] T-Documents, R1, Report by Mr Patel, dated 24 May 2022, paragraph 3.2.2, page 954 and 955.
[97] T-Documents, R1, Report by Mr Patel, dated 24 May 2022, paragraph 3.2.4, page 956.

Mr Patel accepted the Veteran may have had exposure to chemical vapours from painting. However, he notes there is “no information regarding how often and for how long he may have had exposure to such chemical vapours” and “no information regarding the types of paints and thinners/solvents used and whether they contained benzene and in what quantities”.[98] He opined also that the Veteran’s “exposure would have been limited to a duration of a few days and would have occurred in the naturally well-ventilated area of the main deck”.[99]
[98] T-Documents, R1, Report by Mr Patel, dated 24 May 2022, paragraph 3.2.3, page 956.
[99] T-Documents, R1, Report by Mr Patel, dated 24 May 2022, paragraph 3.2.3, page 956.
In addressing the specific factors of SOP 95, Mr Patel concluded that the typical exposure data, as presented in his report from the referenced sources, does not indicate that the required levels of exposure were achievable in the Veteran’s case.[100] Mr Patel therefore concluded that the nature and extent of the Veteran’s exposure to benzene on HMAS Tolga would not meet the requirements of the definition.[101]
[100] T-Documents, R1, Report by Mr Patel, dated 24 May 2022, paragraph 3.2, page 957.
[101] T-Documents, R1, Report by Mr Patel, dated 24 May 2022, paragraph 3.3, page 957
The Respondent also contended, with reliance on section 196B(2) of the Act, that “as the [Authority] has not set out smoking as a factor which must exist before it can be said that a reasonable hypothesis has been raised connecting myeloma with service, smoking cannot be taken into account in applying the SoP”.[102]
[102] Respondent’s Further Outline of Submissions, dated 30 June 2023 at [12].
The Respondent also relied on a report dated 26 June 2023 from Professor Richard Fox who referred to a study done by “The Castillo, JJ et al” in 2012 regarding the association between cigarette smoking and incidence of myeloma. Professor Fox noted the authors of the report carried out a meta-analysis of the observational studies to assess the relationship between cigarette smoking and myeloma. He noted the conclusion in their meta-analysis which showed there is “no relationship between cigarette smoking and an increased incidence of myeloma”.[103]
[103] Exhibit R2, Report by Professor Richard Fox, dated 26 June 2023, page 3.
The Respondent contended the Tribunal should prefer the evidence of Mr Patel over that of Dr Beeby, noting also that Dr Beeby is the Applicant’s son-in-law.[104]
[104] Respondent’s Statement of Facts, Issues and Contentions, dated 6 December 2022, attached Summary of Evidence, paragraph 8, page 2.
The Respondent acknowledged the beneficial provisions of section 119(1)(h) of the Act which requires the Tribunal to take into account the effects of the passage of time when ascertaining the existence of any fact, matter, cause or circumstance, but contended that does not allow for “mere possibilities”. A decision can only be made on material that is “relevant and probative”.[105]
[105] Beezley and Repatriation Commission [2015] FCAFC 165; transcript of proceeding, 3 October 2024, page 59, lines 1-27
Consideration
We began with the first requirement in factor 9(6)(a), namely whether there is evidence to support the hypothesis that the Veteran was exposed to benzene “for a cumulative total of at least 2,500 hours … before the clinical onset of myeloma”. The Applicant contended the figure could exceed 3,800 hours (based on 194 days x 20 hours per day), while the Respondent contended the figure to be more likely around 2,100 hours (based on 194 days x 11 hours per day). Both calculations are speculative, based on a combination of respective estimates about the hours per day when the Veteran was in places on the ship where he might have been exposed to benzene vapours and information contained in the Veteran’s letters to his wife in which he repeatedly commented on the incredible heat experienced on the ship.
We presume the modern-day Royal Australian Navy would maintain detailed records regarding the movement of crew on and off its ships, as well as detailed records of the duties and work sites of individual crew members, but we have no evidence of whether such records were kept in the 1940s or ever existed in relation to HMAS Tolga during the period of the Veteran’s operational service or at all.
We acknowledge the ‘beneficial provisions’ of s 119 of the Act, particularly relating to the poor availability of records and witnesses, attributable to the effects of the passage of time. The Respondent, in response to a question from the Tribunal at the hearing on 3 October 2024, contended it is not necessary to rely on s 119 because there is “an unusual abundance of primary material”, namely the letters from the Veteran to his wife.[106]
[106] Transcript of proceeding, 3 October 2024, page 71, lines 4-11.
We acknowledge the Veteran’s letters provide some information in relation to his duties and the time spent on board and ashore. However, in our view, they provide no evidence for estimating the amount of time the Veteran spent on board or ashore, let alone the number of hours the Veteran may have been exposed to benzene.
Nevertheless, by reference to the evidence of the ship’s engines running continuously and the Veteran being on board the ship almost continuously, we are satisfied there is sufficient relevant and probative evidence to support the hypothesis that the Veteran was exposed to benzene fumes for a cumulative period exceeding 2,500 hours from some combination of coal-related emissions, smoking and repainting of the ship. If he was on board, on average, for only 13 hours a day that would still exceed 2,500 hours over the agreed deployment of 194 days.
Strictly speaking, the number of hours per se is uncontroversial and readily met: people are exposed to benzene at all times, even from the air. What matters is whether the exposure was “as specified” namely to an ambient 8-hour time-weighted concentration of 5ppm for those hours. in this respect, we took considerable guidance from the Department of Veterans’ Affairs SOP Bulletin No. 189, ‘Benzene SOP Factors’ dated 26 June 2023 (the Bulletin).
While acknowledging the Bulletin is informative rather than determinative, it notes that “inhalation of benzene vapour at an 8-hour time-weighted average (TWA) benzene concentration exceeding 5 ppm is and was highly unlikely outside of some specific industrial settings or in particular circumstances in poorly-ventilated, enclosed spaces”.[107] However, the Bulletin also states that “as a generalisation, the further back in time service occurred the greater potential for significant benzene exposure”.[108]
[107] SOP Bulletin No. 189, Benzene SOP Factors, dated 26 June 2023, page 5.
[108] Ibid page 5.
We were cognisant that the causal factors in SOP 95 would have been determined at a time when the technology existed to measure airborne emissions and when workplaces were expected – and perhaps required by law – to regularly monitor such emissions to safeguard the health and welfare of their workers. We were not informed when such practices may have been introduced in Australia, or in the RAN in particular, but presumed they were not in place in 1942 and 1943.
We also noted the Bulletin’s guidance that “smoking 1 pack of 20 cigarettes/day would result in an exposure of approximately 0.9mg of benzene per day, versus exposure of at least 75mg per day from 5 ppm in the air”,[109] indicating that smoking is not a material source of benzene exposure. We also noted the Bulletin’s guidance that “the SoP factor covering intense inhalation exposure (at an 8 hour TWA of >5ppm) is unlikely to be met”.[110]
[109] Ibid page 3.
[110] Ibid page 5.
Whilst exposure to benzene from cigarette smoke would be slight, whichever estimated concentration were used, we do not accept the Commission’s submission that because SOP 95 does not include in section 9 any factor relating to smoking it is “immaterial” and “cannot be taken into account”. True, smoking itself cannot be taken into account as a cause of myeloma as it might in relation to, say, lung cancer, but that does not make it irrelevant. Factor 9(6) addresses exposure to benzene regardless of the source. We see no reason why smoking should be excluded as a source of exposure to benzene, in the same way we see no reason to exclude exhaust fumes from the ship’s engines or fumes from repainting the ship. They too are not mentioned in factor 9(6).
We acknowledge Dr Beeby’s contention that the 8-hour time-weighted average test may be “inappropriate” in the Veteran’s circumstances because the Veteran was effectively working and exposed to benzene for (on his estimate) 21 hours each day. We acknowledge his suggestion that the Tribunal should instead take account of other methodologies, such as the Brief and Scala formula currently used by Work Safe Australia. We accept he puts these views forward in good faith, uninfluenced by him being the Applicant’s son-in-law.
We recognise the point being made by Dr Beeby, but it is not an approach available to us. Pursuant to section 120A(3) of the Act, where a SoP is in force as in this case, a hypothesis connecting the death of the person with the circumstances of service rendered by the person is reasonable “only if” the SoP upholds the hypothesis. In other words, as the Respondent pointed out, we are bound to apply the provisions of the SOP 95, not take an alternative approach by reason of circumstances particular to a veteran or for any other reason, for the purpose of determining whether the hypothesis put forward is reasonable.
Applying the definition of “being exposed to benzene as specified”, the Veteran’s exposure to benzene on a HMAS Tolga is, as Dr Beeby appropriately acknowledged, “impossible” to quantify. In other words, the prospect of the Veteran being exposed to 8-hour time-weighted average benzene concentration exceeding 5 ppm is mere speculation. That is so, even on the Applicant’s own case. Dr Beeby speculates the exposure may have been in the range 0.2 ppm to 2ppm, but even the highest estimate is still less than half that required under the definition in SOP 95.
We acknowledge the Bulletin advises the “current workplace exposure limit for benzene (vapour) in Australia is 1 ppm of air averaged over an 8 - hour period. This was lowered from 5 ppm in about 2003”. This may be so, as a statement (as we understand it) as a limit beyond which people should not be exposed to benzene vapours in the workplace, but it does not change the required average exposure level in factor 9(6). 5 ppm for at least 2,500 hours needs to be met before it can be said that a hypothesis connecting exposure to benzene vapour with myeloma is reasonable.
The Applicant’s reliance on section 196B(14)(d) to argue the Veteran’s exposure to benzene while on board HMAS Tolga had a ‘material contribution’ to his eventual development of myeloma does not assist the Applicant’s case. Section 196B(14)(d) provides that if the existence of the factor “was contributed to in a material degree” by the Veteran’s service that is enough for it to be war-caused, but the factor must still exist. For example, if a veteran were exposed to benzene at the levels specified for the period specified, but some of that period was not service related, section 196B(14)(d) might assist to find the death was still war-caused. None of this assists the Applicant in this case because there is no suggestion the Veteran was exposed to benzene at the level specified other than in the course of his operational service.
Having regard to the evidence before us, in our view there is no relevant and probative evidence that the Veteran was exposed to an ambient 8-hour time-weighted average benzene concentration exceeding 5 ppm for a cumulative total of at least 2,500 hours.
Accordingly, where we are not satisfied the factor stated in section 9(6) on which the applicant relied exists, being the only factor on which she relied, and where at least one factor must “as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting myeloma or death from myeloma with the circumstances of [the Veteran’s] relevant service”, we cannot be satisfied that the hypothesis advanced by the applicant is reasonable.
Pursuant to sections 120(1) and (3) 120A(3) of the Act, it follows we are satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the death of the Veteran was war-caused.
The decision under review will be affirmed.

I certify that the preceding 147 (one hundred and forty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member McCarthy and Member Ormston

.............................[SGND]..................................
Feng J. Associate

Date of Decision:
22 November 2024

Dates of Hearing:
29 November 2022, 25 January 2023, 14 June 2024, 3 October 2024

Solicitor for the Applicant:
Not applicable

Counsel for the Applicant:
Rosalind Winfield

Solicitor for the Respondent: Brendan O’Brien (Moray & Agnew)

Counsel for the Respondent:
Peter G Woulfe

Date of Decision:	22 November 2024
Dates of Hearing:	29 November 2022, 25 January 2023, 14 June 2024, 3 October 2024
Solicitor for the Applicant:	Not applicable
Counsel for the Applicant:	Rosalind Winfield
Solicitor for the Respondent:	Brendan O’Brien (Moray & Agnew)
Counsel for the Respondent:	Peter G Woulfe