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…