Wheeldon, Lillian Isobel v Repatriation Commission

[1998] FCA 981

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 723 of 1996

ON APPEAL FROM THE VETERANS’ APPEALS DIVISION
OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	LILLIAN ISOBEL WHEELDON APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT
JUDGE:		WHITLAM J
DATE OF ORDER:		20 AUGUST 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 723 of 1996

ON APPEAL FROM THE VETERANS’ APPEALS DIVISION
OF THE ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN:	LILLIAN ISOBEL WHEELDON APPLICANT
AND:	REPATRIATION COMMISSION RESPONDENT

JUDGE:	WHITLAM J
DATE:	20 AUGUST 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

The applicant is the widow of Alfred George Wheeldon, who died on 18 January 1994 as a result of carcinoma of the oesophagus.  In World War II Mr Wheeldon served in the Australian Army in New Guinea.  During his service he was exposed to dichlorodiphenyltrichloroethane (“DDT”), a very powerful organochlorine insecticide.

Prior to his death Mr Wheeldon lodged a claim for pension and medical treatment under the Veterans’ Entitlement Act 1986 (“the Act”) on the basis that his carcinoma of the oesophagus was caused by extensive use of DDT during his service.  After his death the applicant claimed a widow’s pension under the Act on the same basis.  Both claims were refused by a delegate of the respondent, who determined that Mr Wheeldon’s disease was not war-caused.

The applicant appealed to the Veterans’ Review Board.  She submitted reports from Dr John Grygiel, a senior staff oncologist at St Vincent’s Hospital Sydney, and Dr Peter McCullagh, a senior fellow at the John Curtin School of Medical Research.  Dr Grygiel said that “it is reasonable to assume that there are some sections of the population . . . that needed only the exposure to DDT to go on to develop oesophageal cancer.”  Dr McCullagh said: “The hypothesis that I believe to be applicable to this case is that repetitive heavy exposure to the insecticide DDT during the course of Mr Wheeldon’s service constituted a risk factor for the subsequent development of carcinoma of the oesophagus.”  He then posed the rhetorical question “[Is] it possible to infer that exposure to [DDT] could be a risk factor for oesophageal cancer?”, which he answered (somewhat tentatively, it might be thought) to the effect that “an epidemiological study to test for such an association would . . . be now quite reasonable.”

The Board affirmed the decision of the respondent’s delegate.  In its reasons for decision, the Board said:

“In summary, the Board considered that Dr McCullagh had raised only the possibility that exposure to DDT was a risk factor for the development of carcinoma of the oesophagus.  No scientific studies had, as yet, demonstrated one way or the other whether such a link, in fact, could be demonstrated.  That is, the Board was of the opinion that the hypothesis put forward was too tenuous (given the absence of specific scientific study of the matter) for it to be considered to have the status of a ‘reasonable hypothesis’ in terms of the Act.”

The applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for review of the Board’s decision.  The respondent tendered two reports from Professor John Levi, the director of the Department of Clinical Oncology at Royal North Shore Hospital.  So far as the extent of Mr Wheeldon’s exposure to DDT was concerned, Professor Levi accepted that true carcinogens have a dose relationship.  He pointed out, however, that Mr Wheeldon’s carcinoma of the oesophagus was an adenocarcinoma and that there was no experimental, epidemiological and clinical evidence to support an association between DDT exposure and the ultimate development of adenocarcinoma of the oesophagus.  The applicant supplemented abstract summaries, which had been attached to one of Dr Grygiel’s reports and dealt with the effects of long term DDT exposure and the development of cancer, by tendering a 1981 Danish paper analysing the relationship between cancer and accumulation in adipose tissue of organochlorine compounds.  Both Dr McCullagh and Professor Levi gave evidence before the Tribunal.

The Tribunal also affirmed the delegate’s decision.  Having referred to the evidence before it, the Tribunal concluded:

As I am convinced by Dr Levi’s evidence that the hypothesis put forward by Dr McCullagh is fanciful, it cannot be regarded as a reasonable hypothesis and thus I am deemed to be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the deceased Veteran’s cancer of the oesophagus was war-caused.”

In the present appeal, counsel for the applicant do not quibble with the Tribunal’s statements about the meaning of the expression “reasonable hypothesis” in s 120(3) of the Act, but they submit that the Tribunal incorrectly applied that provision.  They identify the error in the following way: Dr McCullagh put forward a hypothesis and gave his reasons for it; the fact that Professor Levi does not accept the reasons because studies have not been done does not mean that the hypothesis is wrong; the Tribunal was looking for proof whereas it should have been looking to see if a reasonable hypothesis had been established.  Counsel submit that a hypothesis is necessarily an untested theory and that, once effectively tested, it becomes either a theory or becomes an unsupported (and perhaps unreasonable) hypothesis.

These submissions must be rejected in the light of the decision of the Full Court in Repatriation Commission v Bey (1997) 149 ALR 721, where Northrop, Sundberg, Marshall and Merkel JJ said (at 730):

“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.”

Their Honours went on to state:

“A ‘reasonable hypothesis’ involves more than a mere possibility.  It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.”

Specifically, the Full Court in Bey disapproved judicial statements that medical evidence to the effect that it is “possible” that a disease is attributable to war service is sufficient to give rise to a reasonable hypothesis.  Northrop, Sundburg, Marshall and Merkel JJ said:

“Whether material raises a ‘reasonable hypothesis’ for the purposes of
s 120(3) is a question of fact for it involves no more than a determination whether a hypothesis of connection is reasonable: Repatriation Commission v Owens (1996) 70 ALJR 904.”

In the present case the Tribunal applied s 120(3) consistently with the first and second steps earlier explained by their Honours (at 724).  Although Dr McCullagh used the term “hypothesis”, it is quite plain that neither he nor Dr Grygiel went further than to say that the suggested cause of carcinoma of the oesophagus was a possibility.  In my opinion, the Tribunal was entitled to conclude that in those circumstances the material did not raise a reasonable hypothesis connecting Mr Wheeldon’s disease with his war service.

Counsel for the applicant also submit that the Tribunal erred “by balancing competing theories” contrary to what Beaumont J said in East v Repatriation Commission (1987) 16 FCR 517 at 532. That passage was cited with approval in Bushell v Repatriation Commission (1992) 175 CLR 408 at 415 and 428. But as the majority explained in Bey (at 732) it is still open to the Tribunal to find that a hypothesis is “fanciful” (as it did here) and to examine the validity of the basis for a hypothesis rather than choosing between hypotheses in the sense enjoined by the High Court.

The appeal must be dismissed.  However, this case was argued prior to the decision of the Full Court in Bey and, having regard to the passages that the applicant not unreasonably relied on from Cooke v Repatriation Commission (1997) 45 ALD 205, I do not propose to make an order in respect of the costs of this appeal.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam

Associate:

Dated:            20 August 1998

Counsel for the applicant:	A T McInnes QC and C A Vindin
Solicitor for the applicant:	Kenneth Harrison
Counsel for the respondent:	D E J Ryan
Solicitor for the respondent:	Australian Government Solicitor
Date of hearing:	20 October 1997
Date of judgment:	20 August 1998