Wilson and Repatriation Commission - [2001] AATA 134

DECISION AND REASONS FOR DECISION [2001] AATA 134

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/1407

VETERANS'      APPEALS      DIVISION         )
           Re      NORMA ELSA WILSON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr B. H. Pascoe, Senior Member

Date23 February 2001
PlaceMelbourne

Decision The Tribunal affirms the decision under review.

...….(Sgd) B. H. Pascoe........
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – death from malignant neoplasm of the pancreas – whether war-caused – whether required to spray or decant DDT – whether for a period of 156 days – no evidence of exposure to DDT – DDT used in area in which stationed – whether satisfies Statement of Principles
Veterans' Entitlements Act 1986
Statement of Principles
Instrument No. 55 of 1997 concerning malignant neoplasm of the pancreas

REASONS FOR DECISION

23 February 2001 Mr B. H. Pascoe, Senior Member

This is an application to review a decision of the Veterans' Review Board ("the VRB") which affirmed a prior decision of the respondent that death of the applicant's late husband was not war-caused. The late veteran, Mr Kitchener Rex Edmond Wilson, died on 20 January 1997 and the cause of death was certified to be "disseminated carcinoma of the pancreas – 2 years".
At the hearing the applicant, Mrs Norma Elsa Wilson, was represented by Ms D. Coombs of counsel and the respondent by Mr K. Rudge, an advocate with the Department of Veterans' Affairs. A statement by Mrs Wilson was tendered but she did not provide any further oral evidence. The respondent tendered two reports dated 15 July and 22 September 2000 from Associate Professor John McCarthy of the Australian Defence Force Academy and the service medical records of the late veteran.
The veteran served in the Royal Australian Air Force from February 1941 to January 1946 as a fitter armourer. He served in the Northern Territory from July 1942 to September 1943 and Port Moresby from 25 June 1945 to 4 December 1945. Of some relevance to the submissions, he served in Townsville from 31 March 1945 to 25 June 1945. The whole of his service constituted operational service for the purposes of the Veterans' Entitlements Act 1986 ("the Act").
Mrs Wilson met her late husband prior to his war service and they were married in 1942. She understood that his duties in the air force were as a part of a ground crew and that he loaded explosives into planes. She did not know whether he came into contact with DDT. He was not a smoker and was a social drinker of alcohol. He enjoyed good health until 1995 when he started losing weight. He was diagnosed with cancer of the pancreas and liver shortly before his death in 1997.
Section 120(1) of the Act provides for the Tribunal to determine that death of the veteran was war-caused unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. Section 120(3) of the Act provides for the Tribunal to be so satisfied if the material before it does not raise a reasonable hypothesis connecting the cause of death with the circumstances of the veteran's operational service. Under section 120A, if there is in force a Statement of Principles ("SoP") issued by the Repatriation Medical Authority in relation to the condition suffered by the veteran, then the hypothesis is reasonable only if the SoP upholds such hypothesis. The relevant SoP in this case is that concerning malignant neoplasm of the pancreas (Instrument No. 55 of 1997). The SoP lists the factors, one of which must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised. In this case the only factor relied upon was factor 5(a)(vi):
"being occupationally required to spray or decant DDT for:
(a)an average of three or more days per week for at least one year; or
(b)for a period or periods of time totalling at least 156 days,
before the clinical onset of malignant neoplasm of the pancreas."
Professor McCarthy had researched the veteran's service record, the operations records of his unit and the use of DDT. As it was not until May 1944 that quantities of DDT became available for field trials, there would not have been any exposure to it during the veteran's service in the Northern Territory. Townsville was an area where the epidemic risk of a malarial outbreak was considered substantial. Consequently, it is possible that DDT was used to control the breeding grounds of mosquitoes, but there is no record of the veteran or his unit being involved in spraying. Port Moresby was considered a highly malarious area and Professor McCarthy considered it highly likely that DDT was employed. Malarial breeding grounds were sprayed by men on the ground or by aircraft fitted with a loaded container and spraying apparatus. The aircraft, a DH84 Dragon, was one type of aircraft maintained by the veteran's unit. Professor McCarthy found no direct evidence linking the veteran with the spraying or decanting of DDT. In his report of 15 July 2000 he concluded:
"While it does seem unlikely that a fitter armourer would have been involved in the actual spraying of DDT there might be deemed a level of possibility that he would have been in contact with the substance through loading the containers or decanting them. It is impossible to even speculate with any precision how often such a function would have taken place but the attack on mosquitoes had to be constant and it is possible that if this work were undertaken then it would have been on a regular basis."
It was submitted for the applicant that the circumstances of the service in Townsville and Port Moresby satisfied the factor in the relevant SoP. It was argued that, as the veteran served for some 250 days in highly malarial areas known to be where DDT was used and the veteran may well have been required to undertake spraying or decanting DDT for at least 156 of those days, it cannot be established beyond reasonable doubt that the veteran was not exposed to the degree required by the SoP.
For the respondent it was submitted that the hypothesis advanced by the applicant was no more than tenuous. It was said to be fanciful to suggest that, with the broad range of activities and aircraft with which the late veteran was involved, he could have been required to spray or decant DDT on at least 156 days out of the 250 spent in Townsville and Port Moresby.
In this case there are no clear facts which indicate that the circumstances of the veterans' service satisfied factor 5(a)(iv) of the SoP. Mrs Wilson did not know whether he had any contact with DDT. It can be assumed that the late veteran had never referred to contact with DDT. Professor McCarthy thought that there was a possibility that he would have been in contact with the substance through loading or decanting containers but solely on the premise that DDT was likely to have been employed in the areas in which he served for some 250 days. While Professor McCarthy's report points to a possibility only of some exposure, the SoP requires "a period or periods of time totalling at least 156 days" of "being occupationally required to spray or decant DDT". However, he also states that the main function of the unit in Port Moresby was to service, maintain and overhaul equipment and, at times, undertake technical salvage work. No evidence which suggested that any of the duties involved spraying or decanting DDT was uncovered by Professor McCarthy in his research. At its highest, his reports indicate that it was likely that DDT was used in Townsville and Port Moresby and there was some possibility of some contact by the veteran. He was present in those two areas for approximately 250 days. It is clear that, to suggest that his duties included decanting DDT on 156 or more than 60 per cent of those days, verges on the fanciful.
To suggest that, because there was no clear evidence that the veteran was not required to spray or decant DDT for 156 days, the Tribunal should not be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the death was war-caused overstates the effect of section 120(1) and (3) of the Act. Here there is simply no evidence of a necessary fact to support the hypothesis. There needs to be more than a vague possibility of some contact with DDT. While it is not necessary to prove beyond reasonable doubt that the veteran was occupationally required to spray or decant DDT for the required period of time, it does require some indication that it was likely that the requirement was satisfied. Here, what evidence there is points to the greater likelihood that the veteran had little or no involvement with DDT. As a consequence, I am satisfied that the material before the Tribunal does not raise a reasonable hypothesis connecting the cause of the veteran's death with his operational service.
Therefore, the decision under should be affirmed.
I certify that the eleven (11) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B. H. Pascoe, Senior Member
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  6 December 2000
Date of Decision  23 February 2001
Counsel for the Applicant        Ms D. Coombs
Solicitor for the Applicant         Williams Winter & Higgs
Solicitor for the Respondent    Mr K. Rudge, departmental advocate