Wilkinson and Repatriation Commission
[2005] AATA 1002
•12 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1002
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2003/615
VETERANS' APPEALS DIVISION )
Re PETER WILKINSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr KS Levy, Member Date12 October 2005
PlaceBrisbane
Decision The Tribunal affirms the decisions under review in respect of Human T-cell lymphotropic virus type 1 (HTLV-I) and Chronic Lymphoid Leukaemia (CLL). .....................[Sgd]….....................
KS Levy
Member
CATCHWORDS
VETERANS’ APPEALS – benefits and entitlements – pension – operational service with Royal Australian Air Force – Chronic Lymphoid Leukaemia Human T-cell Lymphotropic Virus Type-1 (HTLV-1) – appropriate diagnosis of conditions – application of Statements of Principles – not reasonable hypothesis of relevant relationship to service raised – conditions not war-caused – decision under review affirmed.
Veterans’ Entitlements Act 1986; ss 68(1), 70, 119, 120, 120B, 196B,
Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193
Byrnes v Repatriation Commission (1993) 116 ALR 210; (1993) 30 ALD 1; 177 CLR 564
Sherman v Repatriation Commission (1991) FCA 304
Re Sharkey and Repatriation Commission (1988) 15 ALD 782
Repatriation Commission v Bey (1997) 79 FCR 364; (1997) 47 ALD 481
Bushell v Repatriation Commission (1992) 109 ALR 30; (1992) 29 ALD 1; 175 CLR 408
Watts v Rake (1960) 108 CLR 158Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Budworth (2001) 66 ALD 285
Repatriation Commission v Webb (1998) 51 ALD 575
Repatriation Commission v Cooke (1998) 160 ALR 17
Repatriation Commission v Stares (1996) 41 ALD 212
Repatriation Commission v Hill [2002] FCAFC 192
East v Repatriation Commission (1987) 16 FCR 517
Constable v Repatriation Commission (2005) FCA 928
Gilbert v Repatriation Commission (1989)86 ALR 713
Repatriation Commission v Tuite (1993) 39 FCR 540REASONS FOR DECISION
12 October 2005 Dr KS Levy, Member 1. This is an application under section 29(1) of the Administrative Appeals Tribunal Act 1975 by Mr Peter Wilkinson for a review of a decision of the Veterans’ Review Board of 15 April 2003.
2. As a preliminary point raised at the hearing before the Administrative Appeals Tribunal (the “Tribunal”) on 7 March 2005, it was noted that the application insofar as a claim was made for chronic lymphoid leukaemia or chronic lymphocytic leukaemia (CLL), was sought to be adjourned as fresh instructions had been received by Counsel on that morning. An adjournment of four to six weeks approximately was indicated. It was therefore agreed that the initial hearing would proceed on the basis of the claim in relation to human T-cell lymphotropic virus type 1 (“HTLV-1”). There was an adjournment of the matter to enable further specialist opinions in relation to CLL. The additional specialist reports dealing with a link between radiation exposure and CLL were issued on 19 May 2005 and 7 July 2005. The hearing of that aspect of the case was conducted on 24 August 2005.
3. It is also noted that the applicant’s claim and statement of facts and contentions also included claim for a condition of gastro-oesophageal reflux disease which was not part of the decision of the Veterans’ Review Board (“VRB”) of 15 April 2003. In fact, the decision in relation to gastro-oesophageal reflux disease was determined by the VRB on 28 May 2002 and no appeal was lodged within the statutory time limit. While details of this condition were included in the statement of facts and contentions for this matter, the respondent argued in its amended statements of facts and contentions subsequent to the applicant’s claims that that condition was not before the Tribunal for decision. Not only was an appeal in relation to this condition outside the statutory time limit, the matter was neither raised by the applicant nor was any evidence in relation to this disease put forward or argued by the applicant’s counsel. In the circumstances, the Tribunal has proceeded on the basis that that condition was not in contention for the purposes of this hearing. The applicant’s conditions of HTLV-1 and CLL are recognised for treatment purposes but have not been recognised as related to service and therefore have not been accepted for pension entitlements. This application relates to a claim for recognition for that purpose.
4. The original application for the conditions referred to was lodged on 15 December 2000. A decision of the Commission was first made on 24 July 2001. That matter was appealed to the VRB and lodged on 13 October 2001. Following consideration including a number of adjournments for further and better evidence, the Board determined that appeal on 15 April 2003 and the applicant was notified on 29 April 2003. That decision which affirmed the original decision, was then appealed to this Tribunal and the application was lodged on 21 July 2003.
5. The applicant was represented by Sciacca, Lawyers and Ms Pamela McGhee of Counsel. The respondent was represented by its advocate, Mr Malcolm Smith.
6. Witnesses for the applicant were himself, Mr Warrick Hawthorne, Group Capt G Lee, Mr N Horvath, Mr Lance Doughty, Mr Lawrence John Craddock and Dr Whitby. The respondent called evidence from Mrs McKeown and Dr Eric Stephenson. Documentary evidence was also admitted as follows:
§Exhibit 1 Applicant’s statement dated 16 December 2003;
§Exhibit 2 Applicant’s statement dated 13 June 2004;
§Exhibit 3 A list of signatures undated;
§Exhibit 4 Amended Statement of Facts and Contentions dated 8 November 2004;
§Exhibit 5 Report of Dr Michael Whitby dated 25 September 2001;
§Exhibit 6 Chronology (undated);
§Exhibit 7 Article from Medical Journal of Australia on “HTLV-1”;
§Exhibit 8 List of signatures filed 12 October 2004;
§Exhibit 9 Report of Write Way Research 17 May 2004;
§Exhibit 10 T documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act;
§Exhibit 11 Statement of Sister McKeown dated 13 July 2004;
§Exhibit 12 Report of Drs Grant and Morgan of 18 August 2004; and
§Exhibit 13 Report of Dr Morton dated 15 September 2004
§Exhibit 14 Statement of the Applicant dated 11 April 2005
§Exhibit 15 Report of Dr Andrew Nicol dated 7 July 2005
§Exhibit 16 Preliminary Nominal Roll of Australian Participants in the British Atomic Tests in Australia (August 2001)
§Exhibit 17 Updated Chronology on Applicant’s Service and relevant medical history
§Exhibit 18 Report of Dr Morton dated 20 September 2004
Issues
7. The issues for determination by the Tribunal are:
(a)Is Human T-cell Lymphotropic Virus Type-1 (“HTLV-1”) defence-caused within the meaning of section 70 of the Veterans’ Entitlements Act 1986 (“the Act”); or
(b)Is HTLV-1 war-caused within the meaning of section 120(1) and 120(3) of the Act; or
(c)Is Chronic Lymphoid Leukaemia (CLL) defence-caused within the meaning of section 70 of the Act; or
(d)Is Chronic Lymphoid Leukaemia (CLL) war-caused within the meaning of section 120(1) and 120(3) of the Act.
Background
8. The applicant was born on 17 July 1940 at Coffs Harbour. He enlisted in the Royal Australian Air Force (RAAF) on 23 January 1956 and retired on 16 July 1995 from the RAAF with the rank of Squadron Leader. During that 40 year period, he served in various bases within Australia. Specifically, he served in Darwin for the period 30 January 1962 to 30 January 1967 and also for the period from 1 January 1972 to 13 November 1973. He served overseas in Malaya from 9 December 1976 to 3 July 1979 (not operational service) and served in operational service with a peacekeeping force in Sinai from 11 January 1984 to 28 June 1984.
9. His eligible service is from 7 December 1972 to 16 July 1995, with the exception of the period of operational service in Sinai from 11 January 1984 to 28 June 1984.
Standard of Proof
10. In relation to the claim for pension under section 70 of the Act, the standard of proof is that of reasonable satisfaction (section 120(4)) of the Act. In relation to operational service, the standard of proof is that of a reasonable hypothesis (section 120(3)) of the Act.
Statement of Principles
11. The relevant Statement of Principles (SoP) in relation to this claim are Instruments No 51 and 52 of 1996 – Human T-cell Lymphotropic Virus Type-1 (HTLV-1). In relation to that Instrument, the applicant has claimed that factors 5(a), (b), (c) and (d) are relevant. The respondent contended that factors 5(a) and (b) only have relevance. The SoP for Chronic Lymphoid Leukaemia (CLL) are also relevant – Instrument Nos 9 and 10 of 2005.
Sworn Evidence
§ Mr Peter Wilkinson
12. In his examination-in-chief, Mr Wilkinson referred to his statements and Exhibits 1 and 3, and also the chronology prepared by him and shown as Exhibit 6. He testified that these were all true to the best of his knowledge. He referred to being diagnosed with HTLV-1, which was discovered after he gave blood as a volunteer to the Red Cross Blood Bank in the Northern Territory. He was phoned six months later by a doctor undertaking a study of white persons who had this virus and asked him to participate. At that time, he was posted to RAAF Base Tindall and had been there for over two years. He has previously been posted to Darwin and had spent approximately one third of his forty years of RAAF service in Darwin. At the time of the diagnosis, he had been serving with the RAAF for approximately 37 years.
13. He was then asked about “needle parades”. This referred to a practice of shared needles or multiple use of needles. The applicant stated that from 1956 (the start of his service) until the end of the Vietnam war in the early to mid-1970s, RAAF held bulk needle parades. He referred to attending a needle parade every six years and that the same needle was allegedly used on a number of servicemen at these needle parades. He said that the only thing changed was the bottle not the needle. He recalled that single use needles for each service person were only introduced during the Vietnam war period.
14. He referred also to having surgery to remove his appendix while serving in Butterworth, Malaysia. Whilst he was there, he was also hospitalised for a bite received from what he understood may have been a sea snake. He said he was given a number of needles as a result of that bite, and was hospitalised in Penang and also Butterworth. This covered the period 1976 to 1979.
15. He returned to Australia in July 1979 where he was posted to Williamtown RAAF Base as a Flight Lieutenant. While there, he referred to a health problem which resulted in abnormal growth of the jaw bones and he was referred to a specialist dentist in Newcastle. There, he had all of this teeth removed, and the jaw bones had to be ground back and false teeth installed. This surgery was necessary as it affected his speech, a fundamental issue for someone who was an Air Traffic Controller. It not only affected his job prospects but also affected his ability to eat and talk.
16. He subsequently served with the peacekeeping force in Sinai and was the officer in charge of the multinational force. He stated he had injections before he went on this overseas service but recalls noticing on his medical record the day before he left RAAF Base Richmond, that these injections were not included on his medical record. Whilst in the Middle East, he received a broken arm and stated that he was given a painful injection to deal with this.
17. In summary, he stated that needle parades were compulsory from the day he joined the RAAF to the day he left on retirement. From 1956 through until 1973 to 1975, he stated multiple use needles were commonplace. After that time, he believed single use needles were standard practice.
18. He referred to the impact on his life by the diagnosis of HTLV-1. He said he could not have sexual relations with his wife; no one could tell him anything about the condition he had – he said it was a bit like having AIDS and it stopped his socialisation, which continues to the present time.
19. When asked about the causes of HTLV-1, he stated that an officer of the Department advised him there were only certain ways this could have been contracted – from multiple use needles; from unprotected sex with a person; or by receiving cuts and abrasions, which could enable the virus to get into the blood stream. It was only prevalent in the Northern Territory and North Queensland. He believed the disease was likely to be contracted via blood transfusions or blood products being used during surgery.
20. He referred to the period 1980 to 1988 wherein he had seven sets of teeth replaced. In 1988, he was sent to a specialist Dentist in Ipswich and then subsequently to St Andrews Hospital in Brisbane where he had further surgery which took place over a period of six weeks. He served with the RAAF in Malaya, Singapore, Indonesia, Papua New Guinea, Northern Territory and Far North Queensland, all of which were areas where the virus is active.
21. In relation to HTLV-1, he was very worried about the virus. He did not have it at age 15 when he entered the RAAF but he had it when he retired at age 55. He consulted medical specialists about the initial diagnosis and had blood tests to prove he had the virus before he retired. He was interviewed by Dr Michael Whitby, who told him there was no cure and therefore no advantage in talking to anybody else about it.
22. Under cross-examination, he stated that he was in Amberley from 1971 until the end of the Vietnam war. He implied that he got special treatment from that time as he was then a Flight Lieutenant, rather than having to attend needle parades. However, prior to that time, Mr Wilkinson reiterated that reuse of needles was frequent in the RAAF but that it stopped about the end of the Vietnam war. He thought he was in Darwin about that time. He said he could remember many occasions when they took the needle off and put a new needle on the syringe.
§ Group Captain Lee (R’td) (by telephone)
23. Geoffrey Ronald Lee was a Group Captain in the Reserve Staff Group. He knew Mr Wilkinson for 25-30 years while he was a fighter pilot. He referred to “needle parades” which he thought commenced about 1965 and thought they continued until about the early 1970s when they started to keep records of inoculations.
24. Under cross-examination, Mr Lee remembered the needle being in place not the changing of the needle. He said he thought the needle might have been changed after every four or five persons. He thought the practice changed in the early 1970s when service personnel attended in smaller groups.
§ Mr Lance Doughty (by telephone)
25. Mr Doughty stated that service personnel were inoculated with the same needle, and up to five at a time. He stated this occurred from 1956 to 1970. He did not agree that the needle was changed but the syringe remained the same.
§ Mr Laurence Craddock
26. This witness stated that he only ever attended one needle parade in his service. He stated this was in 1951 and served for three months until March 1952. He was discharged on 4 March 1952.
§ Mr Horvath
27. This witness stated that he served in the RAAF from 1977 to 1999. He stated that needle parades occurred in the late 1970s and early 1980s and that needles sometimes given in both arms e.g. for small pox and for some other vaccination. He recalled being in needle parades quite a few times but he does not remember the needle being changed each time. However, he then stated from about the 1980s, service persons got individual treatment. In relation to changing of needles, he could not remember. He said he was concerned about that.
§ Mr Warwick Hawthorne
28. This witness was a specialist Dentist and indicated he was a friend of the applicant whilst in the RAAF. He stated that he was not an expert in this particular field in which Mr Wilkinson had dental surgery but said where removal of teeth and an implant is required, blood products are sometimes necessary, although today, people generally use their own blood products. He is not sure what the practice would have been at that time. Under cross-examination, he stated that he thinks it is more likely that blood products would not have been used in this case but the possibility could not be ruled out.
§ Mrs Barbara McKeown
29. Mrs McKeown was a registered nurse and was a Deputy Matron in the RAAF in Butterworth and Richmond. She referred to “inoculation parades” which were carried on all units and in overseas areas such as Malaya. These were conducted for all personnel in RAAF and the other armed services (Army and Navy) and their families. She referred to a WHO book, which showed the inoculations required by the World Health Organisation. This book records the date, month and year in which inoculations were given. She stated that members were inoculated when called up for overseas postings, and for air crew, these were conducted when they were not flying for the next 24 to 36 hours.
30. In relation to the use of needles, she stated that all needles and syringes were sterilised before use, and when used on an individual, they were removed and put into a receptacle. These were subsequently flushed out with clean water. Where multiple injections were required she said a large syringe (10ml) would be used to draw up the solution through a wide bore needle. Then a small bore needle would be placed on the syringe for injections. Once used on each individual, the needle would be removed for sterilisation. She stated that the same phial could be used for up to 20 patients but would not have used the same needle twice. The only change to this procedure was when disposable needles came into vogue. Then, needles came with the syringe and needle attached as a single unit, and often with the serum included in the syringe.
31. Under cross-examination, she agreed that her view of needle parades was true only in relation to her experience. She agreed that she could not attest to all needle parades across all RAAF Bases in Australia and overseas. However, while she had lengthy experience, she stated that she had not been in a practical role since about 1979 when she worked as a senior officer in a staff posting in Canberra. She did have practical nursing experience over the period of Mr Wilkinson’s service. However, she reiterated the policy on use of needles – that is, that the same needle would “never” be used on more than one service man or service woman without re-sterilisation.
§ Dr Michael Whitby (by telephone)
32. Dr Whitby holds a Bachelor of Medicine and Bachelor of Surgery, a Master of Public Health from the University of Queensland, a Diploma in Tropical Medicine and Hygiene from the University of Liverpool (UK); he was also a Fellow of the Royal Australian College of General Practitioners, the Royal Australian College of Physicians in both internal medicine and infectious diseases, the Royal Australian College of Pathologists in Medical Micro-biology, the Royal College of Pathologists of the United Kingdom in Medical Micro-biology and the Fellowship of the Australian Chapter and the Special Health Medicine. He is registered in Queensland as a specialist in internal medicine and infectious diseases and micro-biology. He stated he confined his practice to clinical laboratory and environmental aspects of infection.
33. He was referred to a report prepared by him dated 25 September 2001 in relation to the diagnosis of Peter Wilkinson with HTLV-1. He stated there that “given that he has lived for such a long period in the Northern Territory, which is one of the areas of high risk for the disease in Australia, I think one can assume that it was acquired there”. Dr Whitby stated in evidence that he believed that that view was still a correct assessment. He also stated that the HTLV-1 virus is associated with certain forms of haematological malignancy, but that chronic lymphatic leukaemia is not one of those forms of malignancy. He stated that he did not believe that there was a causal relationship between Mr Wilkinson’s HTLV-1 and the development of choric lymphoid leukaemia.
34. Dr Whitby stated that the virus is rare in most parts of Australia, but it is found across the northern part of Australia and particularly in the Northern Territory. He said it is also found in the Papua New Guinea region, the west coast of Africa, the Caribbean region and in Japan.
35. He also stated that in the very large majority of cases, it seems to be an asymptomatic virus. It can be acquired in a number of ways:
§ By contact with other people’s blood (for example, from mother to child at childbirth);
§ By sexual intercourse; and
§ Is also thought to be transmitted in breast milk
36. He stated that if you live in one of those areas listed and have one of those risk factors, there is a potential of developing this virus. However, he said for the majority of people there will be no symptoms whatsoever and many people will go through life not knowing they are carrying it.
37. In relation to treatment, he said generally speaking there is no treatment available if it is just that the virus is present. Where the disease develops, that is the neurological disease or the leukaemia type diseases, treatment is haematological against leukaemic cells rather than against the virus which causes them.
38. Dr Whitby also stated that there is no way of predicting whether or not either of the diseases he mentioned may or may not develop in a patient who has the virus.
§ Dr Eric Hay Stephenson (by telephone)
39. Dr Stephenson stated his qualifications as being a Fellow of the Australian Faculty of Occupational Medicine – FACOM and is also a Member of the English College, MFOM. He also has a Masters’ Degree in Occupational Medicine, and other qualifications.
40. He stated that he was a Doctor with the RAAF for nearly thirty years from 1955 to 1984. He is now a retired Air Vice Marshall. He has provided two reports or letters to the Repatriation Commission, one dated 13 August 2002 and the other dated 17 December 2002.
41. In referring to Mr Wilkinson’s medical record, Dr Stephenson indicated that the applicant had a number of surgical procedures between 1972 and 1995 but could not find any record of a blood transfusion or provision of a blood product or organ transplant. He stated in 1986 that there were several references to bleeding from a dental procedure but again, there was no indication on his official records of any blood transfusion being given. Perusing his record up to 1988, he said that under normal circumstances one would expect a comment to be made about a blood transfusion but there was no such record. In relation to his opinion as to the likelihood of a blood transfusion having been given, Dr Stephenson indicated that Mr Wilkinson had had some fairly extensive surgery on his mouth but he stated that that would not necessarily require a blood transfusion.
42. In relation to the policy regarding the use or re-use of needles, he stated that the training of nursing officers was quite clear, that is, that a single injection to one person would involve “one needle and one needle only”. He stated that it is possible with certain types of inoculations such as yellow fever, that a syringe would be filled from a phial and it would have up to 10 doses in the syringe. He said that the patients would then see one single needle on the end of one syringe and this would accommodate 10 cubic centimetres or, ten doses of yellow fever vaccine. Dr Stephenson went on to say, “then you would take that needle off and put a smaller one on in order to inject the person, and usually it would be quite possible for people to see that the one needle is being used and they might jump to the conclusion that the same needle is being used all the time”. Dr Stephenson said that such a conclusion was “erroneous”, although he acknowledged that he could not guarantee that there were not instances of somebody taking “a short cut”. Nevertheless, he had enquired in two States, New South Wales and Queensland, and he stated that the response was “absolutely standard, that when you give an inoculation for any reason, you give one needle for one person and then throw away the needle”. In relation to the practice back in the early 1970s, he said the practice he has described was the current practice since about the late 1960s. Under cross-examination by Ms McGhee, he agreed that the medical records did not seem to be complete as, for example, the referral to his specialist dentist, Dr Capper, was not included in the medical records.
43. In relation to needle parades, he stated that he had been present on needle parades a very long time ago in the middle to late 1960s and perhaps the early 1970s. When asked what the practice may have been between the mid 1950s and late 1960s and as to the possible multiple use of needles, he implied that multiple use of needles was not a practice which he personally ever used. He also thought the practice in the 1950s and 1960s would not have been any different to the policy and the practice which he personally adopted.
§ Dr Kerry Taylor
44. Dr Taylor advised the applicant’s Solicitors on 19 May 2005 that he could not provide a report supporting a link between environmental exposure to the victim’s CLL.
§ Dr Andrew Nicol
45. Dr Nicol’s report of 7 July 2005 was prepared at the applicant’s request to identify scientific evidence relating to the possibility that he developed CLL as a consequence of his exposure to ionizing radiation due to atomic fallout, whilst posted to the RAAF at Maralinga and Monte Bello.
46. While Dr Nicol advised that there are some known mechanisms in existence which can provide a pathogenetic basis for a link between CLL and radiation exposure, failure to demonstrate an association between radiation and CLL may be due to methodological consideration. It may also be attributable to the possibility that death may occur from other causes. Consequently, “….it may be asymptomatic so the diagnosis is not made”.
47. His evidence, however, was that “…The epidemiological literature on cancer mortality among workers in the nuclear industry provides a minimal basis for evaluating the effects of external exposure to ionizing radiation on CLL because of low statistical power….” (Exhibit 15).
48. Dr Nicol amplified this report in oral evidence and said there are similarities and differences between B cell malignancy and CLL. B cell malignancy causation is due to external agents (e.g. radiation), or may be caused by abnormalities within the cell itself. He stated to the Tribunal that many B cell malignancies are due to changes within the cell and not caused by outside agents. For example, in a normal B cell, the cell divides and repacks normally. But in CLL, the B cell repacking goes back onto the wrong chromosome and no external force is involved. On the other hand, CLL is a disease and can involve breaks in the chromosome. Some of these breaks could be related to radiation (i.e. could be related to an external agent) whereas some may not be so related.
49. Current knowledge does not provide unequivocal proof because of the long life of the disease itself and cannot prove that ionizing radiation is a cause of CLL. Dr Nicol concluded that the epidemiologic evidence of the connection claimed is weak. However, he qualified his conclusion by stating that the studies to date had certain limitations which made it difficult to further evaluate this association, which is of smaller magnitude than that for other lymphomas and leukaemias. He noted the epidemiologic evidence of a connection between radiation and CLL is weak, but the magnitude of the association is not known with any certainty given the limitations of the data.
§ Dr James Morton
50. Dr Morton’s report of 15 September 2004 (Exhibit 13) states that:
“The finding of HTLV seropositivity is an incidental finding in a gentleman who otherwise has been diagnosed with B chronic lymphatic leukaemia. Furthermore, his CLL requires observation only and would not have benefited from an earlier diagnosis.”
51. A further report was provided dated 20 September 2004 (Exhibit 18) and reveals:
“….
Firstly, HTL-VI is associated with T cell CLL and not B cell CLL which is the form that Peter has.
Secondly, it is unlikely that the disease would have been detectable on routine tests in 1995 and that any earlier diagnosis would not have had any impact on outcome.
Thirdly, it is also highly likely that his CLL began with its first onset many years prior to 1995…..and also quite likely that it would have corresponded to his period of service. I thus believe his CLL should be recognized as a complication of his service years.”
Submissions
52. Ms McGhee referred to the hypothesis that HTLV-1 virus suffered by the applicant was related to his eligible service. She referred to evidence of Dr Whitby and that his view that Mr Wilkinson most likely acquired the virus whilst serving in the Northern Territory. She referred to the Statements of Principles Nos 51 and 52 of 1996 and in particular the paragraphs numbered 5 in those SoPs. She stated that a reasonable hypothesis has been established in the evidence that the veteran had a dental procedure and that that is unchallenged. Likewise, she said the evidence as to the sharing of needles was an issue of fact. She argued that the respondent’s case had failed in relation to the sharing of needles and that the evidence of Mrs McKeown was contradictory to her written statement. She submitted that the evidence of her other witnesses were unchallenged and that Dr Stephenson’s evidence was that the medical records were incomplete. She then argued that the incomplete records acknowledged by Dr Stephenson show that the veteran did not receive a blood transfusion, is sufficient to establish her case.
53. With reference to use or possible use of needles in relation to surgery on his teeth; for treatment for a broken arm during his peacekeeping service; and up until the time where there was a change in practice to single needle use, she stated there is no evidence to reject the applicant’s claim that he experienced shared needles.
54. She also referred to the relevance of Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193 and the principles set out in Byrnes v Repatriation Commission (1993) 116 ALR 210; (1993) 30 ALD 1.
55. Mr Smith, Advocate for the respondent submitted that the standard of proof relating to Byrnes and Deledio would apply only for the five month period in 1984 when the applicant served in the peacekeeping force in Sinai. Even then, he stated that the applicant never suggested he was in a line-up of inoculations at that time and there was no evidence to indicate that needles were unsterilised or used on multiple occasions.
56. He referred mainly to the evidence relating to the period of defence service which commenced from 7 December 1972. He noted that the applicant was in the Northern Territory for one period after that date [the date of commencement of eligible service]. This being the period 7 December 1972 to 13 November 1973.
57. He noted the absence of records but mentioned there was no evidence of any blood transfusion given. He also referred to Mr Hawthorne, the specialist dentist, who stated that blood is available in the event that it is needed in surgery of the type referred to, but he did not think it was very likely to have been used. He also argued that the surgery which took place in Brisbane was unlikely to have posed any risk as it is not an area in which the virus is found. Also there was no evidence of any blood products being used for that operation or any other surgery.
58. In relation to needle parades, he referred to the requirement of the SoPs in that needles must be “unsterilised”. Mr Smith emphasised that it is not relevant if needles are used, then sterilised and then re-used. In that regard, he referred to the very different versions of evidence referred to by the witnesses. In relation to the needle parades, Mr Smith pointed out that the applicant himself said that he did not pay much attention at the time to these needle parades. However, given the evidence of Dr Stephenson and Sister McKeown, he argued their evidence should be given considerable weight. In fact, the reference to needles being blunt and only changing them after the servicemen complained, Mr Smith pointed out that the needle is steel and it was unlikely that it was blunted by skin or flesh if it was used four or five times. He argued that there was a receptacle available and the reasonable procedures was that they put a new needle on each time before re-use. He argued on the balance of probabilities, unsterilised needles were not used and certainly not after 7 December 1972.
59. It was confirmed that Ms McGhee regarded factors (a), (b), (c) and (d) of factor 5 as being arguable, while Mr Smith thought factors (a) and (b) only were in contention.
60. In relation to CLL, Ms McGhee submitted that the applicant’s duties in the RAAF, both defence service and operational service, exposed him to radiation in Maralinga and Monte Bello (1957-1959); while undertaking a Nuclear and Biological Warfare Course in Darwin (1973) by handling low yield radioactive material; in operation of radar systems in Australia, Malaysia and the Middle East; and in being exposed to depleted uranium in Northern Territory (1991-1996).
61. Ms McGhee also referred the Tribunal to onset of CLL before 1995 and that the present conditions were not in existence when the applicant first joined the RAAF. She referred the Tribunal to the High Court decision in Watts v Rake (1960) 108 CLR 158 at 164 where Menzies J said:
“…although it is of course material to ascertain what as the pre-accident condition of the plaintiff who alleges that his post-accident ill health is due to the accident, it is for the defendant to prove that before the accident the plaintiff was in a condition that, without the accident, would have led to his post-accident state of health…”.
62. The respondent argued that considering the Deledio steps, that step 3 cannot be satisfied. He referred to Factor 5(a) and said B cell malignancy is not within the mandatory requirements and therefore the SoP is not satisfied by the applicant’s condition.
63. The respondent also argued that the definition of “clinical onset” is not met (Cornelius v Repatriation Commission [2002] FCA 750). He also submitted that Dr Morton’s evidence indicates that HTLV-1 is an “incidental finding” only (see Exhibit 13).
Consideration
64. The Tribunal has reached the decision in this matter after taking into account all of the oral and documentary evidence, the statute and case law which are relevant. As the majority of the applicant’s experience relates to eligible service, it is necessary to consider whether he satisfies section 70 of the Act. Section 70(5) of the Act provides:
“70 Eligibility for pension under this Part
…
(5)For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
…
(d)the injury or disease from which the member died, or has become incapacitated:
(i)was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; …”
65. For claims made after 1994, it is necessary to apply any SoPs which are in force. Where there is a SoP in force, the Tribunal must determine whether the material or evidence before it raises a sufficient connection between the applicant’s condition and his or her defence service. The Tribunal has to decide whether the applicable SoP upholds the contention that the applicant’s condition is, on the balance of probabilities, connected with his service (section 120B(3)(b). The link to service must be one of the relationships as set out in section 196B (sub-section 14) of the Act:
“196B Functions of Authority
…
(14)A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or
…
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
(e)in the case of a factor causing, or contributing to, an injury—it resulted from an accident that would not have occurred:
(i)but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or
(f)in the case of a factor causing, or contributing to, a disease—it would not have occurred:
(i) but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or
(g)in the case of a factor causing, or contributing to, the death of a person—it was due to an accident that would not have occurred, or to a disease that would not have been contracted:
(i) but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service.”
66. In making an assessment of the evidence before it, the Tribunal must form an opinion as to whether the contention raised by the applicant is consistent with the factor set out in the SoP. If the evidence does not satisfy the template, the claim will fail.
67. There is no dispute that the veteran rendered eligible defence service, so that sections 120(4) and 120B of the Act apply. That is, the Tribunal must decide this matter to its reasonable satisfaction in relation to eligible defence service. Section 120(3) applies in relation to peacekeeping service, and in that respect, the Tribunal must be satisfied beyond reasonable doubt where there is no sufficient ground for supporting the veteran’s claim.
§ HTLV-1
Eligible Defence Service
68. In considering the applicant’s eligible defence service and the factors which may be applicable to him, the relevant factors of SoP No. 52 of 1996 – HTLV-1 are as follows:
“Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, human T-cell lymphotropic virus type-1 or death from human T-cell lymphotropic virus type-1 is connected with the circumstances of a person’s relevant service are:
(a) receiving a blood transfusion, a blood product injection or an organ transplant, that was not screened for human T-cell lymphotropic virus type-1, within the 30 years immediately before the clinical evidence of infection with human T-cell lymphotropic virus type-1; or
(b) being injected, or undergoing a dental procedure, or a surgical procedure (including tattooing) involving an unsterilised needle or unsterilised instruments within the 30 years immediately before the clinical evidence of infection with human T-cell lymphotropic virus type-1; or
(c) suffering a wound, laceration or other injury or disease disrupting skin integrity that may have been contaminated by the body fluids of a person not proven to be negative for human T-cell lymphotropic virus type-1, within the 30 years immediately before the clinical evidence of infection with human T-cell lymphotropic virus type-1; or
(d) being a parenteral drug user and sharing needles within the 30 years immediately before the clinical evidence of infection with human T-cell lymphotropic virus type-1; or”
69. In relation to factor 5(a) of Instrument No 52 of 1996, that is, that the applicant’s HTLV-1 virus is related to a blood transfusion or a blood product injection which is related to his defence service, it seems clear that the medical records are incomplete, but in any event, there is no reference in any of those records which points to a blood transfusion being used. Counsel for the applicant argues that there is sufficient reason to raise doubt about this fact and establish on the balance of probabilities, that that is sufficient to establish factor (a) in the applicant’s favour.
70. However, an absence of evidence does not entitle the Tribunal to construct evidence that was not placed before it.
71. Section 119(1)(g) of the Act states “the Tribunal must act according to substantial justice and the substantial merits of the case without regard to legal form and technicalities;”. Section 119(1)(h) of the Act also requires the Tribunal to take account of any difficulties in ascertaining the existence of facts, including the passage of time and also the absence or deficiency in official records. The Tribunal cannot “…determine the rights of any party on the basis of any assumed set of facts, not part of the material placed before it” (see Sherman v Repatriation Commission (1991) FCA 304 at [22]). Likewise, when dealing with section 119(h) of the Act, it “…does not mean that the Tribunal may assume the existence of facts as to which there is no evidence, simply because of the difficulties in proving those facts. …” (ReSharkey and Repatriation Commission (1988) 15 ALD 782).
72. The Tribunal accepts the evidence of Mr Warwick Hawthorne, Dentist, that he thinks it is unlikely that a blood transfusion would have been used during the prosthetic surgery. The report by Dr Brodie on 17 July 2001 in which he states that in his opinion, neither surgery for the appendectomy or the dental prosthetic work would have involved the use of blood transfusions or blood products. Dr Stephenson, while acknowledging the incomplete state of the medical records, formed a similar view.
73. The absence of any record of surgery by Dr Capper, who was a private practitioner and not employed as a Dentist in the RAAF Service, does not justify a conclusion that all aspects of medical records of the applicant are deficient. The records of Dr Capper may not be on his service medical records because he did not send them to the RAAF. That evidence may therefore be beyond the control of the RAAF. There is still, however, the claims of the applicant that not all of his inoculations were recorded.
74. Therefore, on the balance of probabilities, taking account of credible expert evidence and the absence of medical records to support the applicant’s claims, the Tribunal decides that blood transfusion or blood products were not used in Mr Wilkinson’s surgery.
75. In relation to factor 5(b), which refers to being injected, or undergoing a dental procedure, or a surgical procedure involving an unsterilised needle within 30 years immediately before the clinical evidence of infection of HTLV-1, there is no evidence provided to the Tribunal that unsterilised needles or instruments were used in either the applicant’s dental surgical treatment or his appendectomy.
76. However, in relation to being injected with needles for inoculation, considerable evidence was put by the applicant that he attended “needle parades” between 1956 and the early 1970s. That evidence by the applicant and also supported by the views of other former servicemen in the RAAF, was to the effect the same needle was often used for multiple personnel, probably four or five persons before it was changed. Supporting witnesses were Group Capt Lee, who did not recall such use after 1970. Mr Horvath thought needle parades were held into the early 1980s, while Mr Craddock only recalls only one such needle parade in 1952 and Mr Doughty could not recall needle parades being held in Darwin. Mr Wilkinson, himself, said multiple use needles occurred until 1971 which was about the time he was promoted to the rank of Flight Lieutenant and was also about the end of the Vietnam war. However, he said he did not pay too much attention to those parades at the time. While the truthfulness of those witnesses is not called into question, however, no witnesses who were nurses or medics in the RAAF during the periods in question and who might have provided other factual detail, were available.
77. On the other hand, the respondent called Mrs Barbara McKeown, who was a former Deputy Matron in the RAAF. She was not able to provide attestation about individual needle parades, but she stated that both the training of medics and the procedure to be applied were always that where individual inoculations occurred, then the needle, once used would be removed and put in a receptacle to be flushed out with clean water. Where there were multiple injections of the same serum she stated that it could be drawn through a wide bore needle but then small bore needles would then have been used for each individual person when administered. Once each needle was used, she stated that they should be removed for sterilisation. She worked as a practical nurse until 1979 but after that time had staff and administrative positions in Canberra. Nevertheless, she had had considerable experience as a practical nurse and as a policy maker and seemed well-versed in both practical and policy requirements.
78. Dr Eric Stephenson stated that he also had some experience in the 1960s and 1970s but that as a medical officer, he did not have extensive experience with conducting needle parades. However, he was emphatic that the policy since he qualified as a doctor in 1951 was that when giving a single injection to one person, then one needle only would be used. This coincided with accepted medical practice, training of nurses, in addition to the official medical policy of the RAAF at the time. Where multiple injections were required such as yellow fever, he stated that multiple doses (e.g. ten doses) would be drawn into a syringe with a single needle, and then that needle would be replaced with small needles to inject each person. His evidence was that the same syringe might have been used but not the same needle. Dr Stephenson said:
“…It would be quite possible for the people to see that the one needle is being used and they might jump to the conclusion that the same needle is being used all the time. ….It was erroneous.”
79. Dr Stephenson also said that, of course, he could not guarantee that somebody could not have taken a shortcut, “…but the policy, training, the basic training – and certainly I have enquired into two states, New South Wales and Queensland – absolutely standard, that when you give an inoculation for any reason you give one needle for one person and then throw away the needle”.
80. He also said “that‘s been the current practice I think, since the late 1960s”. He emphasised that it was a practice he had adopted ever since he finished training as a doctor in 1951.
81. While Dr Stephenson admitted that the medical records appeared to be incomplete for the applicant, he nevertheless supported the view of Mrs McKeown. In the T documents (Exhibit 10) the decision of the VRB dated 15 April 2003 makes it clear that the hearing adjourned on more then one occasion to obtain further and better evidence. It had the benefit of an opinion of Dr Boorman who stated the Armed Forces did not reuse unsterilised needles. Dr W Harrex, a former RAAF medical officer, also provided evidence that it was most unlikely that the same needle could be used on more than one person.
82. While factor 5(b) refers to being injected with unsterilised needles within 30 years before the clinical evidence of infection of HTLV-1, the latter condition was diagnosed in the early 1990s. Therefore, consideration might be given to the likelihood of having received an injection with an unsterilised needle from the early 1960s onwards. Certainly, in the early 1960s the applicant served in Papua New Guinea and then later for approximately five years in Darwin. However, as referred to earlier, section 119 of the Act requires the Tribunal to make its decision in accordance with the legislation, although where necessary, substantial justice and the substantial merits of the case should prevail. Based on the weight of evidence provided by medical opinion and a lack of counter balancing evidence which the Tribunal accepts as outweighing the professional evidence, the Tribunal finds that on the balance of probabilities, multiple use needles were not a practice adopted by the RAAF from the 1960s through to the early 1970s. This conclusion has given consideration to the Tribunal’s obligation to act in accordance with substantial justice by section 119 of the Act and also satisfies its obligation under the law (see Repatriation Commission v Bey (1997) 79 FCR 364; (1997) 47 ALD 481).
83. But the applicant’s claim under the Act effectively commences on the 7December 1972 as set out is section 68(1) of the Act. It seems clear that the weight of evidence supports the claim that single use disposable needles were adopted in the early 1970s and about the end of the Vietnam War. Apart from one witness who thought that there were multiple use needle parades occurring in the late 1970s or early 1980s, virtually all of the applicant’s evidence seemed to indicate that this practice had ceased by the early 1970s. Certainly, the medical opinion confirmed that at about that time, single use needles were introduced and no differentiation was made about whether they were used for a one-off individual case or where multiple people were involved such as in a “needle parade”. There was certainly no record of inoculations to indicate any specific location or date which could raise any reasonable expectation of “needle parades” that occurred after December 1972. Also, no evidence was produced that could reasonably infer that blood transfusions or blood products may have been used after that date.
84. Therefore, while it can be accepted that the applicant has HTLV-1 virus, no evidence was shown upon which the Tribunal can reasonably determine that there are pointers to or causal factors which can be attributed to his defence service, having regard to the requirements of the SoP. This includes taking account of possible infection before 7 December 1972 in accordance with the definitional requirements of the SoP.
§ Factor 5(c) – Suffering a wound, laceration or injury or disease disrupting skin integrity during the person’s defence service which could connect that service to HTLV-1.
85. Apart from the evidence which has been dealt with under factors 5(a) and 5(b), no other evidence in relation to this factor is available which could reasonably link that service to the applicant’s present condition.
§ Factor 5(d) – Being a parenteral drug user and sharing needles within 30 years immediately before the clinical evidence of infection with HTLV-1.
86. No evidence which provides any link between the elements of factor (d) during Mr Wilkinson’s defence service and his present condition of HTLV-1 can be established. Therefore, with respect to the SoP, this factor cannot be established on the balance of probabilities.
87. Therefore, none of the factors in the SoP are satisfied in respect of eligible defence service.
Peacekeeping Service
88. In relation to Mr Wilkinson’s claim for a pension in respect of HTLV-1 relating to his operational service, the Tribunal is required to determine that the disease was war-caused unless it is “…satisfied beyond reasonable doubt, that there is no sufficient grounds for making that determination” (section 120(1) of the Act). Also, section 120(3) of the Act provides the Commission, in whose place the Tribunal stands in these review proceedings, shall make its determination on the following basis:
“120 Standard of proof
…
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or 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:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, 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 injury, disease or death with the circumstances of the particular service rendered by the person.”
89. Section 9 of the Act sets out the circumstances in which an injury or disease may be regarded as war-caused. So far as that is relevant to the present case, section 9 of the Act says as follows:
“War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c)…;
(d)…;
(e)the injury suffered, or disease contracted, by the veteran:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.”
90. Therefore, to show that the condition is related to operational service, the applicant must show his condition has either resulted from an occurrence whilst he was on that service (paragraph 9(1)(a)), or has arisen out of or been attributable to such service which is also eligible war service by virtue of section 7(1)(a) of the Act (see section 9(1)(b) of the Act).
91. In considering sections 120(1) and 120(3) of the Act, these have been judicially analysed and determined by the High Court of Australia in Bushell v Repatriation Commission (1992) 109 ALR 30 and in Byrnes v Repatriation Commission (1993) 116 ALR 210. In the latter case, the Full Court of the High Court said that the position adopted in Bushell’s case was also the correct approach to dealing with cases like this:
“…maybe summarised as follows:
(1) First, subs (3) of s120 is applied: do all or some of the facts raised by the material before the commission give rise to a reasonable hypothesis connecting the veteran’s injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts Is not in issue at this point.
(2) If a reasonable hypothesis is established, subs(1) of s120 is applied. The claim will succeed unless:
(a)one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b)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.” (Page 215)
92. Two preliminary considerations must be determined. Firstly, there is a question of whether Mr Wilkinson is a “veteran”; and secondly, whether there is a SoP which covers the injury or disease of which Mr Wilkinson complains (Repatriation Commission and Hancock [2003] FCA 711). In respect of both of these questions, there is evidence that each is satisfied.
93. Assessment of this claim for the period of peacekeeping service should follow the principles set out in Deledio v Repatriation Commission (1998) 83 FCR 82. In accordance with the requirements set out therein, an hypothesis might be raised based on the applicant’s case. SoP Instrument No 52 of 1996 (HTLV-1) also is in existence in respect of the condition. Therefore, the first two steps in Deledio are satisfied.
94. When considering the third step in Deledio and the High Court judgment in the Bushell’s case, the question which arises is whether all or some of the facts raised by the material presented in this case give rise to a reasonable hypothesis that Mr Wilkinson’s condition of HTLV-1 resulted from, arose out of, is attributable to or contributed to in a material degree by his peacekeeping service. The matters raised by the applicant point to there being a hypothesis in that a proposition has been raised that the applicant broke his arm and received a needle from an American Marine whilst on the peacekeeping force.
95. Is that hypothesis a reasonable one within the meaning of the Act? The Tribunal thinks it is not. When considering step 3, there was no evidence upon which a reasonable hypothesis could be raised in relation to any of the factors in the relevant SoP as it relates to the applicant’s peacekeeping service. Looking at all of the circumstances and evidence presented, the Tribunal finds that there is no substantive evidence that points to a connection which links “needle parades” or surgery or using an unsterilised needle when he sustained a broken arm in Sinai. There is no link during the applicant’s peacekeeping service, with the condition of HTLV-1. In other words, the Tribunal is satisfied beyond reasonable doubt that the condition of HTLV-1 is not attributable to his period of operational service in the peacekeeping force in Sinai from 11 January 1984 to 28 June 1984.
96. Having taken all of the material into account, the Tribunal concludes that it does not point to Mr Wilkinson’s HTLV-1 virus having resulted from, arisen out of, been attributable to, or being contributed to in a material degree or aggravated by his service in the RAAF within the meaning of section 70 of the Act. Also, the Tribunal does not find that a reasonable hypothesis has been established linking his HTLV-1 virus with his peacekeeping service.
§ CLL
Eligible Defence Service
97. In considering the relationship of SoP No 10 of 2005 – Chronic Lymphoid Leukaemia with the applicant’s eligible defence-service, the following provisions are relevant:
“2. (a) …..
(b) For the purposes of this Statement of Principles, “chronic lymphoid leukaemia” means an indolent malignant neoplasm of B-lymphocytes or T-lymphocytes characterised by proliferation and accumulation of morphologically mature-appearing but biologically immature lymphocytes in the blood, bone marrow and lymphoid tissue. This definition includes hairy cell leukaemia, adult T-cell leukaemia and chronic lymphocytic leukaemia, but excludes myeloma, Hodgkin’s lymphoma, and all forms of non-Hodgkin’s lymphoma including small lymphocytic lymphoma.
….
Factors
5. The factor that must exist before it can be said that, on the balance of probabilities, chronic lymphoid leukaemia or death from chronic lymphoid leukaemia is connected with the circumstances of a person’s relevant service is:
(a) for adult T-cell chronic lymphoid leukaemia only, being infected by the HTLV-1 virus before the clinical onset of chronic lymphoid leukaemia; or
….”
98. The question of diagnosis of a disease must be decided on the reasonable satisfaction of proof. This was determined by the Full Court of the Federal Court in Repatriation Commission v Budworth (2001) 66 ALD 285. Also, the Full Court further held that the reverse criminal standard of proof applied to the question of whether a disease was war-caused and that the civil standard of proof specified in section 120(4) of the Act applied to the question of whether or not there was a disease. Therefore, the Tribunal must determine whether a veteran is suffering from a claimed injury or disease by reference to the “reasonable satisfaction” standard.
99. The applicant has satisfied the Tribunal that he suffers from CLL. However, as stated by Dr Whitby, the applicant may have acquired the disease in the Northern Territory, which is a high risk area, but HTLV-1 and CLL are not causally related for Mr Wilkinson as he has a B cell malignancy and not a T cell malignancy.
100. In considering factor 5(a) there is no dispute that the applicant was a veteran and that he served in areas which he claimed to be responsible for his condition of CLL. There is also no dispute that he did not suffer from any such condition prior to his RAAF service.
101. Relevant medical evidence has been considered in determining whether there is a link between the applicant’s condition and his RAAF service. Specifically, Dr James Morton has provided a report dated 15 September 2004 which indicates that the applicant has “B chronic lymphatic leukaemia” and that this was “an incidental finding” in his report dated 20 September 2004. The fact that it was an “incidental finding” is in my view not significant. Either he has the disease or he has not. The real issue is whether the disease is related to his RAAF service. Dr Morton pointed out that the applicant’s condition of CLL is a “B cell CLL” and not a “T cell CLL” which is associated with HTLV-1. He has indicated that it was quite likely that the onset of the disease has coincided with a period of the applicant’s RAAF service but did not attribute it to his service. Dr Morton said it would probably not have been detectable while he was in the RAAF in 1995.
102. Dr Andrew Nicol subsequently provided a report dated 7July 2005 at the request of the applicant. He has provided an explanation of the epidemiological evidence which would support a possible link between Mr Wilkinson’s CLL and exposure to radiation whilst serving in the RAAF at Maralinga, Montebello, and in other postings. Dr Nicol also provided oral evidence to the Tribunal on 24 August 2005 in which he further explained that B cell malignancies can be caused either by external agents such as radiation, or by other causes relating to abnormalities within the cell itself. He concluded that the evidence of a link between radiation and CLL is weak. However, assessing the true magnitude of the link cannot be determined with any precision because of the sample size available in the published research and other research limitations. Given the more objective evidence on which Dr Nicol’s evidence is based, the Tribunal prefers his evidence as being a more realistic and balanced view and that the Tribunal should put greater weight on it.
103. It is clear, therefore, that while it is possible that there may be a link between the applicant’s condition and his service in the RAAF, the epidemiological evidence casts substantial doubt over that linkage, based upon the expert scientific evidence presently available.
104. In making a determination of this matter, the Tribunal is again conscious of sections 119(g) and (h) of the Act which require the Tribunal to act “….according to substantial justice and the substantial merits of the case….”. The link between the relevant factor in the SoP and as particularised by medical specialists, and the applicant’s RAAF service, is a question of fact, and after considering all of the material, the Tribunal finds on the balance of probabilities that the link referred to in factor 5(a) is not met.
Peacekeeping Service
105. The legal requirements to be satisfied here have been outlined previously in considering the claim for HTLV-1. The relevant SoP is Instrument No. 9 of 2005 – Chronic Lymphoid Leukaemia. It has been determined without dispute that the applicant is a veteran and that his injury or disease is consistent with a SoP issued by the Repatriation Medical Authority (Repatriation Commission and Hancock [2003] (supra)).
106. The Tribunal must have regard to the requirement to make its determination “after consideration of all of the material”. This was first referred to in Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 177 CLR 564, when the High Court said a reasonable hypothesis is raised when “….the material point to some fact or facts which support the hypothesis”.
107. The standard of proof for the diagnosis of a disease is that of “reasonable satisfaction” (Repatriation Commission v Cooke (1998) 160 ALR 17). The authorities also show that where there is an issue concerning causation, section 120(3) must be satisfied (Bushell’s case and Byrnes’ case). The Tribunal has to determine whether some or all of the facts raised by the material before it raise a reasonable hypothesis connecting the veteran’s disease with his peacekeeping service. Proof of facts is not in issue at this point. Only if there is such an hypothesis, does section 120(1) then arise. At that stage the applicant’s claim must succeed unless:
(a)one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b)the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt.
108. In either of those circumstances, the hypothesis is thus disproved beyond reasonable doubt.
109. To determine the assessment of CLL for this applicant and whether it is “war caused”, four steps are required as set out by the Full Court of the Federal Court in Repatriation Commission and Deledio (1998) 83 FCR 82. The relevant steps are:
“1. 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.
2. 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)…….
3. 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 proved 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.
4. 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, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. 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.”
110. In dealing with Step 1 of Deledio, there must be material which can establish an hypothesis connecting the applicant’s CLL with facts relating to his service. An hypothesis is a proposition which may seem logical, without acceptance of its truth, but it is to be regarded as a starting point for further enquiry. “A hypothesis is no more than a supposition of conjectural explanation of an ultimate fact” (Repatriation Commission v Stares (1996) 41 ALD 212 at 217.
111. The Tribunal is of the view that an hypothesis could be made connecting the applicant’s condition with the circumstances of his service.
112. In relation to Step 2 of Deledio, an SoP exists for the condition of CLL and has been issued by the RMA. The relevant Instrument is No 9 of 2005 – Chronic Lymphoid Leukaemia.
113. Step 3 of Deledio requires an assessment of whether the hypothesis raised in Step 1 is a reasonable one. The Explanatory Memorandum to the Act makes it clear that a reasonable hypothesis is not the existence of a mere possibility, but that the intention of the legislation is that a pension will be payable only where the evidence justifies “….some positive inference in favour of a connection between the injury, disease or death and the veteran’s or member’s particular service” (at page 107).
114. The approach to be adopted in assessing this question was set out by the High Court in Byrnes and Repatriation Commission (1993) 177 CLR 564 at 571 as follows:
“The position may be summarised as follows:
(1)First, sub-s (3) of s 120 is applied: Do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran’s injury with the war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable the claim fails. Proof of facts is not in issue at this point.
(2)If a reasonable hypothesis is established sub-s (1) of s 120 is applied. The claim will succeed unless:
(a)one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b)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.” (Emphasis added)
115. In determining whether the hypothesis is reasonable, the material before the Tribunal must fit the template in the SoP for CLL. That is, the material before the Tribunal must demonstrate the elements of CLL as defined in clause 2(b) and clause 5 of the SoP (Repatriation Commission v Hill [2002] FCAFC 192).
116. The Tribunal has adopted the approach in Hill’s case in assessing the reasonableness of this hypothesis. The relevant factors in the SoP which contribute to this assessment are identical to those in SoP No. 10 of 2005 outlined earlier.
117. The third step in the Deledio process requires the Tribunal to make a relatively macro-level of assessment of the applicant’s story and to determine whether it fits the template set out in the SoP. Findings of fact are not made on the basis of Step 3. At this point, however, if the applicant’s story does not fit within the template of SoP Instrument No 9 of 2005, then the hypothesis will not be reasonable (see section 120(3)). It is simply a question of whether Mr Wilkinson had identified an event that might have resulted in his present condition (Constable v Repatriation Commission (2005) FCA 928). If the story does not fit the template or the event might not have evoked the present medical condition, the claim would be unsuccessful.
118. To be reasonable in terms of Hill’s case, an hypothesis must reveal a credible proposition and one that is not too remote or too improbable. It must be “….more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved on the balance of probabilities” (East v Repatriation Commission (1987) 16 FCR 517 at 533. An hypothesis therefore is merely a possibility, but to be a reasonable hypothesis, it must “….be pointed to or supported, and not merely left open as a possibility by the material before the decision maker” (Repatriation Commission v Bey (1997) 79 FCR 364).
119. The approach in Bey’s case was approved and followed in Gilbert v Repatriation Commission (1989) 86 ALR 713. An hypothesis must also show more than just a temporal connection with military service (Repatriation Commission v Tuite (1993) 39 FCR 540). The High Court in Bushell v Repatriation Commission (1992) 175 CLR 408 affirmed this approach or the “points to” test. It said this test in s.120(3) will manifest a reasonable hypothesis in circumstances where “….there is sufficient factual material to point to a reasonable hypothesis connecting the injury etc with the operational service”.
120. The Tribunal, in performing its functions under section 120(3), must have regard to medical and scientific evidence which both supports and opposes the veteran’s claim. This is performed so that the Tribunal can properly consider the reasoning which supports the claim and which shows the extent of any connection between the applicant’s condition and his RAAF service. The Tribunal has been conscious in considering this matter that the hypothesis may be reasonable even though it may be unproved or even unsupported by the weight of informed opinion.
121. In assessing step 3, the claim will succeed unless one or more facts necessary to uphold the hypothesis are disproved or another factor inconsistent with it is proved beyond reasonable doubt. Whether the material before the Tribunal raises a “reasonable hypothesis” for the purposes of section 120(3) is a question of fact, for it involves no more than making a judgment about whether an hypothesis or connection is reasonable in the circumstances.
122. Considering the evidence outlined earlier by Dr Morton and Dr Nicol, it is apparent that Mr Wilkinson suffers from a B cell malignancy and not a T cell chronic lymphoid leukaemia as prescribed in factor 5(a). Dr Nicol, in concluding that the current state of scientific evidence indicates that a link between Mr Wilkinson’s condition and radiation exposure during his RAAF service is weak but went no further than to say that the suggested cause of the disease was a possibility. Dr Morton suggested that the clinical onset of the condition probably occurred during the period of his RAAF service. But whether the cause could be reasonably linked to his RAAF service was not specified. They put it no higher than that.
123. In assessing the strength of the evidence to support an hypothesis as reasonable, the evidence must not merely be “abstract” or raised as an unfounded hypothesis. There must be some evidence to be found in the material before the Tribunal (Gilbert v Repatriation Commission (1989) 86 ALR 713 at 721). The material must also support the hypothesis in substance “and not merely leave open, a hypothesis as a reasonable hypothesis” (East v Repatriation Commission (1987) 74 ALR 518.
124. The applicant’s assertion was the only evidence proffered about the likelihood of radiation exposure in the Sinai and as a possible link to the applicant’s CLL. The possibility of the aetiology of this condition, a B Cell malignancy, being due to mutations caused by abnormalities at a cellular level and therefore unrelated to external events (his RAAF service), is equally the explicable cause. But while that provides equivocal evidence of each of those two possibilities, the supporting epidemiological evidence is not strong. In fact, Dr Nicol described the link as “weak”. On that basis and when considering the applicant’s assertions, the Tribunal has considered that there is an inconsistent and efficacious factor which is proved beyond reasonable doubt.
125. The Tribunal has therefore concluded that, in the circumstances, the material does not raise a reasonable hypothesis connecting the applicant’s condition of CLL with his peacekeeping service. Consequently, the Tribunal finds the hypothesis raised by the evidence of the applicant is not reasonable.
126. For these reasons, the Tribunal affirms the decisions under review in respect of HTLV-1 and Chronic Lymphoid Leukaemia.
I certify that the 126 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Member
Signed: Jeff Mills
Legal Research OfficerDate/s of Hearing 7 March 2005
Date of Decision 12 October 2005
For the Applicant Mr P McGhee of Counsel
For the Applicant Sciaccas, Lawyers
For the Respondent Mr M Smith, Departmental Advocate
0
23
0