Wheeldon v Repatriation Commission - [1999] FCA 1397

FEDERAL COURT OF AUSTRALIA
Wheeldon v Repatriation Commission [1999] FCA 1397
VETERANS’ AFFAIRS – Veterans’ Entitlements Act 1986 (Cth) (“the Act”) – claim for pension on the basis that disease and subsequent death war-caused – whether the Administrative Appeals Tribunal (“the Tribunal”) erred in finding no reasonable hypothesis linking the veteran’s cancer of the oesophagus and his exposure to DDT during operational service – whether the Tribunal was entitled to conclude on the evidence before it that the hypothesis was not reasonable – manner is which Tribunal has regard to expert evidence
Veterans’ Entitlements Act 1986 (Cth), ss 13, 120, 120A, 120B
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Whetton (1991) 31 FCR 513
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Owens (1996) 70 ALJR 904
Bushell v Repatriation Commission (1992) 175 CLR 408
Critch v Repatriation Commission (1996) 43 ALD 574
LILLIAN ISOBEL WHEELDON v REPATRIATION COMMISSION
NG 952 of 1998
BURCHETT, BRANSON and RD NICHOLSON JJ
SYDNEY
12 OCTOBER 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 952 of 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

LILLIAN ISOBEL WHEELDON
Appellant

AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

BURCHETT, BRANSON AND RD NICHOLSON JJ

DATE OF ORDER:

12 OCTOBER 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
The appeal be 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 952 of 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

LILLIAN ISOBEL WHEELDON
Appellant

AND:

REPATRIATION COMMISSION
Respondent

JUDGE:

BURCHETT, BRANSON AND R D NICHOLSON JJ

DATE:

12 OCTOBER 1999

PLACE:

SYDNEY

REASONS FOR JUDGMENT
BURCHETT J

Alfred George Wheeldon saw operational service during the Second World War in Papua New Guinea. As a sergeant in the Second Australian Independent Farm Platoon, he was exposed, according to uncontradicted evidence, to the insecticide DDT “on many occasions”, being the non-commissioned officer in charge of spraying operations. DDT is perhaps the best known of the organochlorine compounds, a class of insecticides banned from general use in many countries (including Australia), since the 1970s, because of problems both of toxicity and of persistence. On 18 January 1994, Mr Wheeldon died of an adenocarcinoma of the oesophagus. The question in this appeal, brought by his widow, is whether the judge at first instance was right to affirm the decision of the Administrative Appeals Tribunal that the material before it did not raise a reasonable hypothesis connecting Mr Wheeldon’s death with the circumstances of his service – in particular, his substantial exposure to DDT.
The claim that the material did raise a reasonable hypothesis of a link between the fatal cancer and the DDT was first advanced on the widow’s behalf by Dr J Grygiel, Associate Professor of Medicine and Senior Staff Oncologist at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wheeldon v Repatriation Commission

Details

AGLC: Wheeldon v Repatriation Commission [1999] FCA 1397
Case: [1999] FCA 1397
Decision Date: 12 OCTOBER 1999

CaseChat Overview and Summary

The case of Wheeldon v Repatriation Commission involved the applicant, Mr Wheeldon, seeking compensation from the Repatriation Commission for his death, which he claimed was caused by his exposure to DDT during his war service. The dispute centred around the establishment of a causal link between his service and his death, specifically whether the exposure to DDT constituted a risk factor for the development of carcinoma of the oesophagus. The case was heard in the Federal Court of Australia.

The primary legal issue before the court was whether the Tribunal had erred in concluding that the hypothesis put forward by Dr Peter McCullagh, linking Mr Wheeldon’s exposure to DDT and his subsequent oesophageal cancer, was not reasonable. This involved determining whether the Tribunal was correct in rejecting the hypothesis in light of the expert medical evidence presented. The court also had to consider the established method of applying section 120(1) and (3) of the relevant Act, which involves identifying the hypothesis, determining its reasonableness, and then applying section 120(1) if a reasonable hypothesis is found.

The court examined the evidence provided by Dr McCullagh and Professor John Anthony Levi, both of whom gave opposing expert opinions on the link between DDT exposure and oesophageal cancer. The court noted that while there was no direct evidence linking DDT exposure to oesophageal cancer, Dr McCullagh argued that the hypothesis was reasonable based on the shared risk factors between the pancreas and the oesophagus. Conversely, Professor Levi argued that there was no evidence to support such an association. The court held that the Tribunal was entitled to conclude that the hypothesis was not reasonable given the evidence before it, and that the Tribunal did not err in its assessment of the expert evidence.

The final order of the court was to dismiss the appeal, upholding the decision of the Tribunal that the hypothesis linking Mr Wheeldon’s war service to his death was not reasonable.

Orders

Orders of the court

The appeal be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Sections 120A and 120B of the Act now impinge on the operation of s 120 of the Act. However, ss 120A and 120B only apply to claims made on or after 1 June 1994. They have no application in the circumstances of this case.Decision of the Tribunal The Tribunal identified the hypothesis said to establish the causal link between the veteran’s war service and his death as the hypothesis advanced by Dr Peter McCullagh that repetitive heavy exposure to DDT during the course of Mr Wheeldon’s service constituted “a risk factor” for the subsequent development of carcinoma of the oesophagus. In a written report Dr McCullagh stated:“Studies specifically concerned with possible relationships between exposure to DDT and oesophageal cancer have not been published (nor have the results of any epidemiological studies which sought, and failed to find, such associations). However, DDT exposure has been incriminated as a risk factor for cancers in another part of the gastro-intestinal system, the pancreas … Pancreas and oesophagus are both components of the gastrointestinal system and they share a common major risk factor for carcinogenesis in tobacco smoking. I believe that epidemiological study to test for such an association would, in the light of recent progress in investigation of DDT as a human carcinogen, be now quite reasonable.” Dr McCullagh also referred in his oral evidence to the results of a Danish study published in 1982 which reported an association between the occurrence of some cancers, particularly cancer of the stomach, cervix, ovaries and prostate, and the presence of DDE, a long lasting break down of DDT. Dr McCullagh asserted that Mr Wheeldon’s cancer, being an adenocarcinoma, can effectively be regarded, when one is looking for aetiologies, in terms of being a carcinoma of the stomach. Two letters written to the applicant by Dr J. Grygiel, Associate Professor of Medicine and Senior Staff Oncologist at St. Vincents Hospital where Mr Wheeldon received radiotherapy, were also placed in evidence before the Tribunal. In summary, Dr Grygiel expressed the view in his letters that a possible link between DDT exposure and the development of oesophageal cancer “was a reasonable theory to explore” and referred to “the evidence accruing of the emergence of an increased incidence of various cancers that would appear to be related to exposure to DDT in the distant past”. Professor John Anthony Levi, the Director of Oncology at Royal North Shore Hospital, Sydney gave evidence to the Tribunal by way of written report that:“[t]here is no experimental, epidemiological or clinical evidence to support an association between exposure to DDT of any degree, intensity or duration and carcinoma of the oesophagus.” Professor Levi also stated in a report:“It has been suggested that because carcinoma of the pancreas is a gastrointestinal malignancy, there would therefore be an association between this and carcinoma of the oesophagus. Whilst it is true that the pancreas arises within the abdominal cavity, it is a distinct organ and not part of the gastrointestinal tract. To extrapolate that because both oesophagus and pancreas are intra-abdominal organs relates them in some way to etiology, is at the very least fanciful.”

Ratio Decidendi

Legal Principle Established

The substance of the argument advanced by the appellant was that in a case such as the present, where two eminent medical practitioners give opposing evidence, it is not for the Tribunal to chose between them, in the sense of preferring the evidence of one to the evidence of the other. The role of the Tribunal, it was argued, was rather to assess whether or not there is a reasonably hypothesis and it will be almost impossible, if not impossible, to suggest that a hypothesis squarely advanced by an eminently qualified person is not reasonable simply because another person similarly qualified does not accept it.Consideration As Northrop ACJ, Sundberg, Marshall and Merkel JJ pointed out Bey’s at 366-367, the method of applying s 120(1) and (3) is now well established. Their Honours identified that method as follows:“(1)One commences with subs (3). The first step is to identify the hypothesis said to establish the causal link between the veteran’s eligible war service and the death, injury or disease. Identifying the hypothesis is a question of fact.(2)The second step under subs (3) is to determine whether the hypothesis is reasonable. The material will raise a reasonable hypothesis if it points to some fact or facts which support the hypothesis (the “raised facts”) and if the hypothesis can be regarded as reasonable assuming the raised facts to be true. In determining whether the hypothesis is reasonable the decision-maker must identify the facts said to point to it.(3)Whether a hypothesis is reasonable is a question of fact. The decision-maker must be satisfied that the hypothesis is reasonable after considering the whole of the material. Proof of facts and onus of proof are not in issue at this point.(4)If the decision-maker concludes that the material raises a reasonable hypothesis, the third step is reached. Subsection (1) must be applied, and the claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis.In some cases the hypothesis may assume the occurrence or existence of a “fact”. That itself does not make the hypothesis unreasonable: Byrnes at 570 and Critch v Repatriation Commission (1996) 43 ALD 574 at 577.” The issue raised by this appeal is that of whether it was open to the Tribunal to conclude that the hypothesis said to establish the causal link between Mr Wheeldon’s death and his war service was not a reasonable hypothesis. This issue is one of fact to be determined by reference to the whole of the material before the Tribunal (Repatriation Commission v Owens). The expert evidence before the Tribunal in this case was complex and it is necessary for it to be examined in some detail. In view of the way in which the hearing before the Tribunal was conducted, it is sufficient for that examination to extend only to the evidence of Dr McCullagh and Professor Levi.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 952 of 1998

BETWEEN:	LILLIAN ISOBEL WHEELDON Appellant
AND:	REPATRIATION COMMISSION Respondent
JUDGE:	BURCHETT, BRANSON AND RD NICHOLSON JJ
DATE OF ORDER:	12 OCTOBER 1999
WHERE MADE:	SYDNEY

JUDGE:	BURCHETT, BRANSON AND R D NICHOLSON JJ
DATE:	12 OCTOBER 1999
PLACE:	SYDNEY