Woolnough and Repatriation Commission
[2001] AATA 609
•29 June 2001
DECISION AND REASONS FOR DECISION [2001] AATA 609
ADMINISTRATIVE APPEALS TRIBUNAL )
) No. N1996/765
VETERANS' APPEALS DIVISION )
ReBeryl Catherine Rebecca WOOLNOUGH
Applicant
AndREPATRIATION COMMISSION
Respondent
DECISION
TribunalMrs M T Lewis, Senior Member
Date29 June 2001
PlaceSydney
DecisionThe Tribunal sets aside the decision of a delegate of the Repatriation Commission dated 3 March 1995, and in substitution therefor determines that the death of Reginald Woolnough was war-caused, and that Beryl Woolnough is entitled to the payment of War Widow's Pension, on and from 7 February 1995.
..............................................
M T Lewis,
Senior Member
CATCHWORDS
VETERANS' AFFAIRS - operational service by mariner - whether death of mariner from non-Hodgkin's lymphoma was war-caused – whether Statement of Principles applies – whether Applicant can rely on her accrued rights - whether a reasonable hypothesis raised – whether reasonable hypothesis disproved beyond reasonable doubt
Veterans' Entitlement Act 1986, ss. 5C(1), 6(1)(n), 120(1) and (3), 120(A)
Bushell v Repatriation Commission 175 CLR 408
Deledio v Repatriation Commission (1997) 47 ALD 261
Repatriation Commission v Thompson [2001] FCA 341
Woolnough and Repatriation Commission (AAT 12100, 8 August 1997)
REASONS FOR DECISION
Mrs M T Lewis, Senior Member
This is an application for review lodged by Beryl Catherine Rebecca Woolnough ("the Applicant") on 21 June 1996 for review of a decision of the Repatriation Commission ("the Respondent") dated 3 March 1995 which determined that the death of the Applicant's husband, Reginald Woolnough ("the Mariner") was not war caused within the meaning of the Veterans' Entitlements Act 1986 ("the Act"). The decision of the Respondent was affirmed by the Veterans' Review Board ("the VRB") on 24 May 1996.
It is not at issue that the late Mariner rendered operational service on the S.S. Anhui from 1 May 1943 to 19 July 1944, and therefore the matter falls for consideration pursuant to s. 120(1) and (3) of the Act. He also served on the S.S. Baltic (also referred to in the documents as S.S. Baltyk) from October 1944 to July or August 1945 when it was under service to the British Ministry of War (T5).
The late Mariner was married to the Applicant on 26 September 1942 (T19) such that the Applicant was a dependant of the late Mariner for more than 12 months and by implication resident in Australia prior to his entering into the agreement concerning the service on the S.S. Baltic. Accordingly, and as the Respondent submitted, the late Mariner's service aboard the S.S. Baltic constituted eligible war service because he was an Australian mariner being a seaman employed under agreement in seagoing service on a ship registered outside Australia for at least 12 months immediately before he entered into the agreement: s5C(1) of the Act. Section 6(1)(n) of the Act states that "a person is taken to have been rendering operational service while the person was employed outside Australia on a ship as an Australian mariner". Thus the Tribunal finds that the late Mariner's service aboard the S.S. Anhui and S.S. Baltic was operational service for the purpose of the Act.
The Mariner died on 1 March 1966 at the age of 46 years from lymphocytic non-Hodgkin's lymphoma (T16 and T12).
In determining that there was no reasonable hypothesis connecting the Mariner's death with his war service, the primary decision maker took into account the Statement of Principles concerning non-Hodgkin's lymphoma, Instrument No.79 of 1994. The Tribunal has already conducted a hearing in this matter on the preliminary issue of whether in determining the matter s120A of the Act must be applied. The Tribunal issued a formal Direction and Reasons for Direction (Woolnough and Repatriation Commission AAT 12100, 8 August 1997) in the following terms -
1. At the ultimate hearing of this matter, the Tribunal must apply s. 120A of the Veterans' Entitlements Act 1986 ("the Act") in its terms and determine the claim for pension according to the law in force at that time;
2. The report of Dr P McCullagh dated 4 April 1997 is not admissible as evidence at any hearing of this matter unless Instrument No. 175 of 1996 is revoked and a Statement of Principles is determined pursuant to s. 196B(2) of the Act which includes exposure to ultraviolet radiation as one of the factors which must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting non-Hodgkin's lymphoma with the circumstances of a person's relevant service;
3. The matter now be listed for hearing on the substantive issues.
After the Tribunal's Direction and Reasons for Direction were issued on 8 August 1997 the parties advised that they wished to proceed to a hearing of this matter on the papers, with the parties making written submissions.
Ultimately the parties provided further documentary evidence and written submissions. It was submitted on behalf of the Applicant, that in effect the Statement of Principles does not apply or in the alternative the definition of "infection" in the Statement of Principles was either unconstitutional and therefore not applicable, or should be read down in order to comply with the decision of the High Court in Bushell v Repatriation Commission 175 CLR 408.
Meanwhile, the accrued rights issue in respect of the application of Statements of Principles was also being litigated in the Courts at that time, and the Tribunal decided, as this was a decision that the parties had asked to be made on the papers, to await the Court decisions before proceeding to make its decision. The Tribunal considered this was necessary because the Tribunal in its earlier formal Direction, had determined that the Statement of Principles would be applied, and as the case law emerged this was becoming less obvious to be the correct approach.
Ultimately, the Full Federal Court in Repatriation Commission v Thompson [2001] FCA 341 was handed down on 2 April 2001. That matter is on all fours with the matter now before the Tribunal. The reasoning provided by the Full Court in Thompson identified the difficulty the Tribunal had in this sort of matter in following the case law as it stood until that decision was made, especially when provided with carefully argued submissions that in effect disagreed with the case law that existed at that time. The effect of the decision of the majority of the Full Court in Thompson is that the Applicant has an accrued right to have a Commission decision on a pension claim reviewed in accordance with the law, including any Statement of Principles, in force when the application for review was made. The Tribunal is bound to apply that decision, and in so doing must set aside its own direction of 8 August 1997.
In applying the decision of the majority of the Full Federal Court in Thompson (supra) the Tribunal notes that the Applicant lodged her claim for war widow's pension on 31 October 1994, and at that time Instrument No.79 of 1994 for Non-Hodgkin's Lymphoma was not in place. Indeed it was not gazetted until 21 December 1994. Therefore, as the Applicant seeks to rely on her accrued right to have this matter determined on the law as it stood at the time she lodged her claim on 31 October 1994, the Statement of Principles does not apply.
evidenceThe Tribunal had before it the documents provided by the Respondent pursuant to s.37 of the Administrative Appeals Tribunal 1975. The Tribunal also had before it the following documents:
Report of Dr P McCullagh dated 4 April 1997;
Pathology report from Sugarman Pathology dated 9 February 1997;
Report of Dr A Carr, immunologist dated 15 April 1998;
Statement of Beryl Woolnough signed and dated 3 April 1998.
The Mariner was a ship's engineer during World War II. After the War he worked for W.D. and H.O. Wills. Apparently in 1960 the Mariner provided the following summary about his service and service related medical treatment (T5):
9.3.1960 Evidence on Form "U" given by member.
The "Anhui" was a troop carrier and carried Australian and American troops. The "Baltic" was a merchantman. The "Anhui" carried troops from Australia to the New Guinea area. The "Anhui" was bombed at Finschaffen, Buna, Goodenough Island and Hollandia. The "Anhui" was never actually hit. ...
My attacks of nervous dyspepsia commenced at Buna. The ship had a couple of near misses at Buna and the constant air attacks effected me considerably. A Dutch ship tied up at the wharf was hit. I reported sick a couple of times. There was no doctor on board. The Captain sent me ashore a couple of times for R.A.P. treatment. ...
Whilst on the "Baltic" I still suffered from nervous dyspepsia and was treated constantly. There was no doctor aboard and I treated myself. ...
I was treated in London... This doctor gave me a very brief examination and considered I was suffering from sub-acute appendicitis. I have gone to numerous doctors but the complaint was never correctly diagnosed.
I left the sea August 1945. Since then I have been working at W.D. & H.O. Wills.
Dr Peter McCullagh, MD, D.Phil, MRCP, a Senior Fellow at the John Curtin School of Medical Research, provided a report dated 4 April 1997 that was not based on any Statement of Principles. He noted that the Mariner had visited South America and Papua New Guinea in the course of his service, and that he spent some time ashore in Papua New Guinea after contracting malaria. Dr McCullagh assumed from the s.37 documents provided to him, that the Mariner spent most of his working life in Sydney and in activities that were predominantly indoor. In contrast, his period as a mariner was likely to have entailed more outdoor exposure, much of which was in tropical and sub-tropical regions. Dr McCullagh raised the hypothesis that the Mariner during his service, occasioned exposure to ultraviolet radiation to a considerably greater extent than would have occurred in the absence of such service. He noted that there is a substantial body of evidence from epidemiological and experimental sources to suggest that increased exposure to ultraviolet radiation increased the risk of developing non-Hodgkin's lymphoma. He opined that the association between ultraviolet exposure and non-Hodgkin's lymphoma was placed on a particularly strong basis by the research of Adami et al ["Evidence of an association between non-Hodgkin's lymphoma and skin cancer". (1995) British Medical Journal, 310, 1491]. He also noted that ultraviolet light has been demonstrated conclusively to be immunosuppressive. He opined that suppression of the immune system by ultraviolet exposure was not localised to the irradiated area of skin, but it affects the immune system throughout the body. He considered that the liability of individuals with a suppressed immune system to develop non-Hodgkin's lymphoma has been very well established, most notably in individuals subject to therapeutic immunosuppressive regimes. Dr McCullagh considered it likely that the Mariner received significantly more ultraviolet radiation than would otherwise have been the case because of his service. Much of his two years of service was in the tropics, during the Pacific campaign, which conferred an increased risk of developing non-Hodgkin's lymphoma.
This hypothesis was not supported in the Statement of Principles that ensued, and the parties then became deflected on investigating hypotheses consistent with the Statement of Principles. One that was investigated by the parties, in particular, was that the Mariner may have been infected with the HTLV-1 Virus during his service in the Carribean, as it was rife in that region. Because of the possibility of the Applicant having developed antibodies to the Human T-Lymphotropic Virus Type 1 from her association with the Mariner it was considered, in trying to demonstrate an hypothesis between his war-service and death, that it could be helpful if she underwent serum analysis, which she did on 28 January 1997. The result of that analysis, provided in a pathology report dated 9 February 1997, was reported as follows:
Antibodies to Human T-Lymphotrophic Virus Type 1 - NOT DETECTED. A negative result does not preclude the possibility of infection with or exposure to HTLV-1.
A report from Dr Carr, immunologist, dated 15 April 1998 was then provided at the request of the Respondent. It states, insofar as is relevant:
I disagree with the medical officer's statement that only severe infections could predispose to subsequent malignancy. Indeed asymptomatic infection with the Epstein Barr virus can be associated with development of lymphoma in later life. There are numerous examples of chronic asymptomatic viral infections resulting in malignancy.
With respect to the four question that you specifically asked me:1. HTLV-1 is a virus in the retro virus family of viruses... It is very rare in Caucasian Australians. As a retro virus, HTLV-1 is thought to be contracted by sexual contact, injection with an infected needle, perinatal transmission, receipt of infected blood products or occupational transmission in a health care setting. Given Mr Woolnough's occupation as a naval engineer it seems unlikely that he was at any increased risk for HTLV-1 infection even if he had been in an endemic area during his war service.
...2. It seems to have been alleged that Mr Woolnough was infected with HTLV-1 in the 1940's. I can see no evidence for this. In particular the type of lymphoma associated with HTLV-1 is what is now currently classified as a high grade non-Hodgkin's lymphoma that generally involves lymph glands within the chest and has a rapidly fatal course. Although the duration of his lymphoma is unclear the classification of lymphocytic lymphoma is unlikely to have represented the high grade lymphoma associated with HTLV-1 infection and the location on the autopsy report was noted to be the posterior abdomen.
...3. The majority of people infected with HTLV-1 never develop complications such as lymphoma or spastic paraparesis. Likewise, spread of the virus is probably only possible when infected cells, particularly cells that are actively producing HTLV-1, are transmitted by one of the means that I described above. ...
4. A failure to detect antibodies to HTLV-1 neither refutes nor supports the notion that the applicant's husband was infected with HTLV-1. As the risk of sexual transmission of HTLV-1 is not known, the absence in the applicant of HTLV-1 does not mean that Mr Woolnough may not have had HTLV-1. Essentially I find the pathology result meaningless.
...
Overall there is no clinical or autopsy evidence that Mr Woolnough had HTLV-1 infection at any stage and clearly the applicant does not. I think on probabilities that Mr Woolnough's lymphoma was not related to his war service.The Applicant provided a statement dated 3 April 1998, viz:
I am the widow of the late Reginald Woolnough. My husband left Sydney on the S.S. Baltic in July 1944. It was a cargo vessel which made regular trips to Buenos Aires in South America, staying a week or two while the ship was unloaded. Water and food were taken on the ship. He told me that he drank water in the ports in which he stayed. From South America the next stop was usually Mexico for 1 month having repairs done and he told me that the people were very kind, taking the crew home for meals. He and I had a code between us and he used the code whenever he wrote letters to me so that I could keep track of him. The letters were opened by examiners. I believe that my husband went to these ports 8 or 10 times whilst he was on that ship.
Their home port was Townsville so I didn't see him until after the war when he came back from London. He came home 1 week before the war was finished in about April 1945. The company decided to send the ship to England on the way back and the first port was Hong, Kong, the second port was Ceylon and the third Bombay. The fourth port was Durban, the fifth was Capetown, the sixth was Gibraltar, the seventh was Lisbon and the eighth port was Dublin where he was discharged as he was too sick to travel further. They sent him to London for treatment in June 1945 and he came back ill.
submissions
The hypothesis put forward on behalf of the Applicant was:
1.The late mariner did not suffer any major illness prior to his service in the Merchant Navy.
2.He served on ships that had docked in South America.
3.It was known that the HTLV-1 virus was endemic to South America.
He suffered illnesses which were akin to viral infections.
He was infected with the HTLV-1 virus that led to or contributed to his Non-Hodgkin's lymphoma.
It was submitted that the HTLV-1 Virus can pass between and infect spouses, and that the evidence that a negative result in the Applicant's pathology report does not preclude the possibility of infection with or exposure to the HTLV-1 virus.
It was submitted for the Applicant that the "raised material" gives rise to an hypothesis and that the facts upon which that hypothesis was based have not been disproved beyond reasonable doubt.
It was submitted that, having regard to Deledio v Repatriation Commission (1997) 47 ALD 261, the Applicant is not required to provide serological evidence of infection and the Respondent must disprove beyond reasonable doubt that the late Mariner was not infected. It was submitted for the Applicant that the pathology report and Dr Carr's report do not prove beyond reasonable doubt that the Mariner was not infected with the HTLV-1 virus. Therefore the Applicant should succeed in her claim.
It was also submitted for the Applicant that the evidence of Dr McCullagh was admissible notwithstanding that it did not address the Statement of Principles, and that his evidence raises a reasonable hypothesis of causation between the Mariner's service and his death.
It was submitted for the Respondent that the Statement of Principles applied, and that it was required to prove serological evidence of infection with HTLV-1 in accordance with the Statement of Principles and no such evidence has been raised in this case. The Respondent relied on Dr Carr's report as evidence that, on the balance of probabilities, the late Mariner was not infected with HTLV-1, and submitted that it was unlikely given the type of high grade lymphoma caused by HTLV-1 discussed in Dr Carr's report. In the alternative the Respondent submitted that there is no evidence that any infection of HTLV-1 was related to the late Mariner's service.
consideration of evidence and findingsThe Tribunal notes that this matter was originally investigated on the basis that the Applicant was required to raise a reasonable hypothesis of a connection between the Mariner's death and his war service, and that such reasonable hypothesis was not disproved beyond reasonable doubt. The Applicant has sought to rely on her accrued rights to have this matter determined in accordance with the law as it stood at the time she lodged her claim, when indeed no Statement of Principles in respect of death from Non-Hodgkin's Lymphoma existed. Applying the decision of the majority of the Full Federal Court in Thompson (supra) the Tribunal finds that the Applicant can rely on her accrued rights.
In considering the hypothesis raised by Dr McCullagh, the Tribunal notes that he is a highly qualified medical practitioner, with qualifications as a specialist physician and with expertise in medical research. He has relied on his analysis of the relevant research literature in providing his opinion, and he is appropriately qualified to do so. In considering that hypothesis the Tribunal finds that it is not unreasonable, untenable or fanciful. It is based on scientific knowledge, but it is not proved. The Tribunal finds that the hypothesis has been properly raised by an appropriately qualified expert, and that it is a reasonable hypothesis pursuant to s120(3) of the Act.
Moving now to s120(1) of the Act, the Tribunal must consider whether there is evidence before it that disproves the hypothesis beyond reasonable doubt. There is no such evidence, and at the most the Tribunal would anticipate that any alternative evidence would not go further than to provide a contrary view, thus providing a conflict of medical opinion. Indeed, it is this very situation that motivated Parliament to amend the Act so as to require matters such as this to be determined in accordance with Statements of Principles.
The Tribunal finds that the reasonable hypothesis raised has not been dispelled beyond reasonable doubt, and therefore the Tribunal must find that the Mariner's death was war caused. The decision under review is therefore set aside and the decision of the Tribunal substituted that the Mariner's death was war-caused and that the Applicant is entitled to payment of war widow's pension.
The Tribunal notes that the Applicant's application for review by the VRB was lodged more than three months after notification of the Respondent's decision dated 3 March 1995, and therefore the earliest date of effect of the Tribunal's decision is 7 February 1995, that being a date not earlier than six months before her application to the VRB.
The Tribunal does not propose to consider the hypothesis relating to the HTLV-1 virus. It could require the inference of certain facts about the Mariner's sexual activity while on service about which there is no evidence. Not only does that make the hypothesis more tenuous, although not necessarily too tenuous, but it has certain implications for the Applicant that in the circumstances are now quite unnecessary to raise.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member
Signed: .....................................................................................
AssociateDate/s of Hearing n/a
Date of Decision 29 June 2001
Solicitor for the Applicant Mr K Harrison, Kenneth Harrison Solicitor
Advocate for the Respondent Mr R Wallis, Dept of Veterans' Affairs
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