Smith; Repatriation Commission and [1990] AATA 523 (22 June 1999)

Last Updated: 4 June 2008

VETERANS' ENTITLEMENTS - veteran stationed in Darwin - said to have flown on missions outside Australia - whether "operational service" VETERANS' ENTITLEMENTS - death from hepatoma - whether war-caused - use of thorium by instrument maker

Veterans' Entitlements Act 1986 ss.6, 8, 13, 119, 120

Re Repatriation Commission and Delkou (1986) 9 ALD 358
Repatriation Commission v Kohn (1989) 87 ALR 511

D E C I S I O N & R E A S O N S

Re: REPATRIATION COMMISSION

And: AUDREY IRENE SMITH

No V89/46
AAT Decision No 5999

Tribunal: Mrs R.A. Balmford, Senior Member

Date: 22 June 1990

Place: Melbourne

DECISION

Decision: The Tribunal affirms the decision under review.

......................... Senior Member

ADMINISTRATIVE APPEALS TRIBUNAL) ) No V89/46
VETERANS' APPEALS DIVISION)

Re: REPATRIATION COMMISSION
Applicant
And: AUDREY IRENE SMITH
Respondent

REASONS FOR DECISION

22 June 1990
Mrs R.A. Balmford, Senior Member

Introduction

1. This is an application for review of a decision of the Veterans' Review Board made on 4 October 1988 setting aside a decision of a Repatriation Board made on 25 July 1984 that the death of the respondent's husband, David Leonard Smith, was not war-caused and substituting its own decision that the death of Mr Smith was war-caused and that the Commonwealth was liable to pay pension to the respondent from 24 March 1983.

2. The Tribunal had before it the documents lodged by the Repatriation Commission pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 and numbered T1 to T17, together with other materials lodged at the hearing, to some of which it will be necessary to refer. Evidence was given at the hearing by the respondent, by Professor Fox, Director of the Department of Haematology and Medical Oncology at the Royal Melbourne Hospital and The University of Melbourne, and by Dr Hurley, of the Peter MacCallum Cancer Institute, a consultant radiotherapist. The applicant was represented by Mr Douglas of the Advocacy Section of the Department of Veterans' Affairs, and the respondent by Mr Macaulay of counsel.

3. The submissions of the applicant were first, that the evidence did not show that the respondent's late husband rendered "operational service" in terms of paragraph 6(1)(a) of the Veterans' Entitlements Act 1986 ("the Act"), and thus the relevant standard of proof was that established by sub-section 120(4) of the Act, that is, the normal civil standard of proof on the balance of probabilities (see Re Repatriation Commission and Delkou (1986) 9 ALD 358). Secondly, not only did the material before the Tribunal not establish, on the balance of probabilities, that Mr Smith's death was war-caused, but even if the first submission failed, the material did not raise a reasonable hypothesis in terms of sub-section 120(3) of the Act connecting Mr Smith's death with the circumstances of the particular service rendered by him and accordingly the Tribunal should be satisfied beyond reasonable doubt that there was no sufficient ground for determining that his death was war-caused.

4. The relevant provisions of the Act for present purposes are:

" 6.(1) For the purposes of this Act –

(a) a person who has rendered, as a member of the Defence Force, continuous full-time service outside Australia during a war to which this Act applies shall be taken to have been rendering operational service while the person was so rendering continuous full-time service;
(b) a person who has rendered, as a member of the Defence force, service of a kind described in paragraph (a), (b) or (c) during World War 1 or World War 2 shall be taken to have been rendering operational service during any period of continuous full-time service rendered by the person during that war, within Australia, immediately before, or immediately after, the person rendered that service of a kind so described;".

8.(1) Subject to this section, for the purposes of this Act, the death of a veteran shall be taken to have been war-caused if - ...

(b) the death of the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; ..." " 13.(1) Where - (a) the death of a veteran was war-caused; or

(b) ... the Commonwealth is, subject to this Act, liable to pay - (c) in the case of the death of the veteran - pensions to the dependants of the veteran; or

(d) ... in accordance with this Act." "119.(1) In considering, hearing or determining, and in making a decision in relation to - (e) a claim or application; ... the Commission –

(f) is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just; (g) shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and

(h) without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to –

(i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses; and

(ii) the absence of, or a deficiency in, relevant official records, including an absence or deficiency resulting from the fact that an occurrence that happened during the service of a veteran, or of a member of the Defence Force or of a Peacekeeping force, as defined by sub-section 68(1), was not reported to the appropriate authorities."

"120.(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. ...

(3) In applying sub-section (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. (4) Except in making a determination to which sub-section (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

(5) Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that –

(a) an injury suffered by a person is a war-caused injury or a defence-caused injury;

(b) a disease contracted by a person is a war-caused disease or a defence-caused disease;

(c) the death of a person is war-caused or defence-caused; or

(d) a claimant or applicant is entitled to be granted a pension, allowance or other benefit under this Act.

(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on –

(a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or

(b) the Commonwealth, the Department or any other person in relation to such a claim or application, any onus of proving any matter that is, or might be, relevant to the determination of the claim or application."

5. It is not in issue, and on the basis of documents before the Tribunal I find, that Mr Smith, who was born in 1913, served in the Royal Australian Air Force, initially as a Trainee, and then as an Instrument Repairer and an Instrument Maker, from 7 May 1942 until his discharge on 10 January 1946. From 28 February 1945 to approximately 22 November 1945 he served in the Northern Territory, principally in Darwin. His service thus prima facie constituted "eligible war service", in terms of sub-section 7(1) of the Act, but not "operational service" in terms of sub-section 6(1)(a). He died on 18 February 1983, the cause of his death being shown on the death certificate as hepatoma, from which he had suffered for six months, with metastases in the lungs and abdomen.

Whether operational service

6. The respondent submitted, on the basis of two written statements by a Mr Fardig, who served in Darwin with Mr Smith, and on the evidence of Mrs Smith, that the Tribunal should find that Mr Smith in fact "rendered operational service", although that service was not officially recorded. Mr Fardig is currently travelling around Australia, and was unavailable to give evidence at the hearing.

7. The relevant portions of the more extensive of Mr Fardig's two statements read:

"I was a fitter 2E (group 1 engine fitter) during the Second World War. I was stationed with David Smith at Darwin. I was present in Darwin from about December 1944 to December 1945 and David was present during the whole of my stay. We shared the same hut. I was aware that during our Darwin service David flew overseas on a number of occasions. Likewise, so did I. We were given short notice and the commanding officer would simply advise us in the evening that we were required to fly the next morning. We performed patrol work and dropped mines. We went to the Islands north of Australia up to about the Timor Straits. ... I was never present when David received orders to fly overseas, but on a number of occasions he was absent for a number of days and when he returned he would relate his experiences to me. Amongst other things he would tell me where he had been. I recall him telling me of travels up to the Timor Straits. We would drop mines in the straits and around the islands to keep the Japanese submarines and ships at bay. The furthest north was probably not much further than the Timor Straits. Basically there was no reason at all for an instrument maker such as David to go on these trips, however, the commanding officer made various service men attend these trips for experience. I do not know if David ever stopped over on an island during one of these trips. Certainly planes would refuel at West Bay (in W.A.)."

8. Mrs Smith did not meet her husband until the early 1960's. He told her that during his war service he had worked in aircraft on the instruments in the pilot's cabin, sometimes while the aircraft were on the ground and sometimes while they were in the air. They used to fly over "the islands" and drop mines or take photographs. He was trained to take over the gunner's position on those flights if anything happened to the gunner. Sometimes they returned to Broome, rather than Darwin, after such flights, and would collect oysters and bring them back to Darwin.

9. I note the submissions of Mr Douglas as to the defects of the evidence set out in the preceding two paragraphs. However, taking those submissions into account, I accept the evidence, the substance of which appears to me to be inherently probable. Accordingly I find, on the balance of probabilities, that Mr Smith did undertake "service outside Australia", as described in that evidence. I take the meaning of the expression "the islands", as used in Australia during the Second World War, and subsequently in the context of that war, to encompass New Guinea and the other islands to the north, outside Australian waters. I note in this context the provisions of sub-paragraph 119(1)(h)(ii) of the Act.

10. The question then arises as to whether that service was such as to constitute "continuous full-time service outside Australia" so as to be "operational service" for the purposes of the Act, which would have the effect, by virtue of paragraph 6(1)(d) of the Act, that Mr Smith is to have been taken to have been rendering operational service during the whole of his period of service from 1942 to 1946.

11. Both counsel referred to Repatriation Commission v Kohn (1989) 87 ALR 511, a decision of Hill J. In that case the respondent had spent several hours, in discontinuous periods, outside Australian waters on 22 August 1945 during a voyage by sea between Townsville and Cairns. The question was whether those several hours constituted "continuous full-time service outside Australia". The court found that they did not. After an extensive consideration of the relevant provisions, his Honour said (at pages 524-525): (emphasis added)

"The legislative policy behind the Veterans' Entitlements Act is that a person who has rendered operational service in the sense defined in s.6(1) should more readily be able to obtain a pension than a person who has not rendered such service. It was the intention of the legislature that it was only members of the Armed Forces who, in truth, were on service outside Australia during World War 2 who should receive this preferential treatment as to pensions. It cannot be conceived that Parliament intended that veterans who were at all times stationed in Australia but who travelled from one place in Australia to another and thereby were for short periods of time outside Australia, should be treated in the same way as veterans who fought in a theatre of war, sailors who served continuously on a ship engaged in or likely to become engaged in combat or members of the Air Force engaged in flying missions outside Australia. The suggestion that an airman who went by road from Townsville to Cairns should be treated differently for the purpose of pension than an airman who went by ship between the same towns, both airmen probably taking approximately the same time to complete the journey, is, to say the least, bizarre. It seems to me that to give effect to what I believe to be the legislative policy behind the current legislation and indeed the policy which the foregoing analysis of the history of the legislation indicates was behind all previous manifestations of it, an interpretation of s.6(1)(a) should be advanced which would exclude mere transitory passages outside Australia from the definition of `operational service' in s.6(1)(a). When attention is focused on the rendering of continuous full time service outside Australia it is not correct to look in isolation at the period of time in which the member of the Defence Force is outside the three mile limit to the exclusion of the periods of time immediately before and imediately after that period. Nor is the purpose for which the member of the Forces comes to be outside Australia irrelevant. Rather, it may be necessary to consider a wider period of time. How wide a band of time that is to be considered will depend upon the facts of each case. One must then ask looking at the relevant period overall, whether it is correct to categorise the member's service in that time as being continuous full-time service inside Australia or continuous full-time service outside Australia. If the essential character of the service considered overall can be seen to be continuous full-time service outside Australia then for the purpose of the legislation it is to be treated as operational service. If, on the other hand, looked at overall, notwithstanding that at a discrete moment of time the service of the member was outside Australia, the service is properly as a matter of ordinary English language to be seen as having an essential character of continuous full-time service within Australia, then for the purposes of the legislation it will not be treated as `operational service'. It is obvious that there can be questions of degree involved. Service on a naval ship, where the ship was sailing to some place in the middle of the ocean to refuel planes there and then return during the war, would clearly enough be characterised as service outside Australia. The purpose of the voyage will in such a case give the service its essential character. So too, an airman piloting a plane on a mission from Australia and back, not landing in the meantime, will likewise be seen to be engaged in operational service for the purposes of the legislation because it will then, having regard to the purpose of the mission and as a matter of fact, be proper to look at this mission in isolation and characterise the airman's service by reference to it. However, where the purpose of the journey outside Australia itself, being but brief, is merely to facilitate the performance of service which itself is continuous full-time service within Australia, the service outside Australia will not give colour to the service nor will it permit a characterisation of the service as being continuous full-time service outside Australia. With all respect to the learned Member of the Tribunal who thought otherwise, it is, in my opinion, not correct to characterise the transport from Townsville to Cairns in the present case with intermittent movements in and outside Australia as involving the rendering of continuous full-time service outside Australia. Indeed, if the ordinary man on the street were asked whether such a transit passage should be so characterised it is obvious what his answer would be." and at page 526:

"Since I am of the view that Mr Kohn was not, on the proper interpretation of the expression, rendering continuous full-time service outside Australia it is unnecessary to consider a further submission that the six hours spent outside Australia should be treated as de minimis and be accordingly ignored. However, I should say that on the facts of the present case there was much to be said for this submission."

12. Having considered the evidence, I find that Mr Smith's service, as described in the evidence of Mr Fardig and Mrs Smith, is distinguishable from the service of the respondent in Kohn and indistinguishable from the service described by Hill J in the passages which I have emphasised in the above extracts from his judgment. Accordingly, I find that that service constituted "operational service" for the purposes of the Act. The remaining question before me is whether the material before me raises a relevant reasonable hypothesis.

Whether a reasonable hypothesis

13. As the claim "relates to the operational service rendered by the veteran" the standard of proof to be applied in this matter depends on sub-sections 120(1) and (3). Those provisions were considered by the Full Court of the Federal Court in East v Repatriation Commission (1987) 12 ALD 389. At page 403 their Honours cited the following passage from the decision of the Tribunal in Re Dell and Repatriation Commission (1986) 9 ALD 596 at 615:

"A hypothesis may be conveniently defined as: `proposition made as basis for reasoning, without assumption of its truth; supposition made as starting point for further investigation from known facts; groundless assumption': The Concise Oxford Dictionary." ... "The addition of the word `reasonable' would however seem to imply that what is required is more than a mere hypothesis. In the opinion of the Board, to be reasonable, a hypothesis must possess some degree of acceptability or credibility - it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be `raised' by material before the Board, we think it must find some support in that material - that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis. At the same time, however, a hypothesis may be reasonable without having been proved (either on the balance of probability or beyond reasonable doubt) to be correct as a matter of fact. Were it otherwise, it would no longer be a hypothesis but would have been elevated to some higher status. Accordingly a connection asserted by a hypothesis to exist between death or incapacity and service may still be reasonable even though theoretical, and it may be theoretical in either or both of at least two senses: by postulating a known medical fact but in circumstances not known to have definitely existed in the instant case; or by postulating a medical principle which science is not yet able to definitely prove but is unable to describe as unreasonable."

Their Honours continued:

"We agree with this analysis. A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities."

14. Also relevant are the following passages from the judgment of Hill J in Gilbert v Repatriation Commission (1989) 86 ALR 713 at 719:

"[A]n hypothesis advanced in abstract which is not grounded in facts which are before the Tribunal could not be a reasonable hypothesis ... In other words, there will be a need for some evidence before the Tribunal to convert an hypothesis from being abstract to one having relevance to the facts of the particular case." (emphasis in the original)

and at 721:

"Where, as will usually be the case, the material before the Commission does not itself show a clear connection between the death or incapacity or injury and the member's war service, it will be the duty of the Commission to examine the material before it to see whether that material raises an hypothesis which connects the injury, disease or death with the claimant's war service. The Tribunal must consider whether any hypothesis so raised is reasonable. If the material before the Commission discloses no evidence at all grounding the hypothesis so that the hypothesis is merely abstract, then it may be said either that the hypothesis is not raised on that material at all, or that such hypothesis is not, having regard to that material, a reasonable one. In other words, there must be some evidence to be found in the material before the Tribunal, or, as was said in East, the hypothesis must `find support in that material, that is, the material must point to and not merely leave open, a hypothesis as a reasonable hypothesis'. Taking by way of example the facts in Webb, the material before the Commission must raise the hypothesis and the hypothesis must be reasonable; that is to say, there must be some evidence in that material as to a blow to the arm occurring to the veteran while on war service. Once the Commission has formed the opinion that the material before it does raise a reasonable hypothesis then s.120(1) will fall to be considered. It may then come about that, having regard to the material before the Tribunal, the hypothesis is dispelled beyond reasonable doubt. This, with respect, in my opinion, is what was meant by Davies J. in the passage I have cited from Webb when his Honour dealt with the case where it was proved beyond reasonable doubt that, although the cancer might be hypothesised to have originated in an injury, that injury did not occur during war service. His Honour, in the passage cited, had assumed that there was first found a reasonable hypothesis, that is to say, one which in the East sense was grounded in fact. His Honour then considered the application of s.120(1). The same idea, it can be said, is caught up by Foster J. when his Honour refers to the basic factual material upon which the reasonable hypotheses is raised being found `at the end of the day' to exist. The application of s.120(1) in a case such as the present, in my view, will normally arise only after the reasonable hypothesis has been raised on the material before the Tribunal, that is to say, only after there is some ground of fact which both raises the hypothesis and allows it to be described as reasonable. An interpretation of the relation between s.120(1) and s.120(3) of the Act which suggests that in determining whether an hypothesis is reasonable any fact upon the existence of which the hypothesis is dependent is to be assumed unless dispelled by the evidence beyond reasonable doubt, would be contrary to the clear legislative intention to replace the O'Brien test with that expressed in dissent by Brennan J. It is not to be assumed that the Court in Webb overlooked what had been said in East."

See also the decision of Morling J in Repatriation Commission v Lowerson (unreported: No [NSW] G1245 of 1988, decided 29 August 1989).

15. The submission of the respondent was that in the course of his service as an Instrument Repairer and Instrument Maker Mr Smith had worked with thorium, and had ingested a quantity of thorium which had initiated the cancer from which he died, the primary seat of which was in the liver. This was, it was submitted, a reasonable hypothesis connecting his death with the circumstances of the particular service rendered by him, in terms of sub-section 120(3).

16. In the material before the Tribunal was a document relating to Mr Smith, signed by a RAAF Medical Officer on 16 November 1945, with the printed heading "Short History of Case and Investigation Required" and completed with the words "Has worked with Radium and Thorium as Instrument Maker. For Full Blood Count on discharge please" [abbreviations having been here expanded]. The result of the full blood count, dated 13 December 1945, was agreed by both Dr Hurley and Professor Fox to show nothing abnormal. However Dr Hurley said that a most enormous amount of irradiation would be needed to produce an abnormality in blood soon after exposure, and in terms of radiation protection full blood examinations were not now relied upon. Had the blood test shown abnormality, Mr Smith would have been dead long ago. Thorium is a radioactive salt, which would show up at night: it was to be assumed that this was the context in which Mr Smith had used it as an instrument maker.

17. Under the trade name Thorotrast, thorium was formerly used to inject into body cavities to assist in radiographic visualisation. Used in this way, it was found to be carcinogenic, producing liver cancers, including hepatoma, starting some 15 years after the injection and increasing exponentially thereafter, with a mean latency period of 20-30 years. A review article by Paul B. Hoffer (The Year Book of Nuclear Medicine 1988, pages 13 ff) discusses the history of the use of Thorotrast and states, at pages 17-18:

"[T]he risk of liver cancer developing in an individual who survives for 25 years after administration of Thorotrast (thorium-232) is approximately 20%. Assuming that approximately 10 million individuals received Thorotrast, and that 1% of these individuals received it at a young enough age and with limited enough underlying disease so that they survived for 25 years post injection, approximately 10,000 individuals have died from Thorotrast-induced liver tumors alone. Yet, when one speaks of radiation disasters, Thorotrast is rarely considered. The fact that Thorotrast is `dangerous' is generally understood, but the magnitude of the Thorotrast disaster is rarely appreciated."

18. Professor Fox, who reviewed the literature, stated that there is no reported link between industrial exposure to thorium and the development of malignant disease. He noted that no thorium deposits showed on a CT scan which Mr Smith underwent in 1982. The people who had developed cancers after the use of Thorophast had received relatively massive quantities of thorium intravenously. It was difficult to know how Mr Smith would have ingested a sufficient quantity, or how it got to his liver. If he had swallowed it, it would have been largely excreted: if he had inhaled it, one would have expected him to develop cancer of the lung, although there was no evidence of thorium causing lung cancer.

19. Dr Hurley said that the literature indicated that thorium was a carcinogenic agent, with a long latent period from the time of absorption, causing cancer particularly of the liver, in the absence of any other pathology. The other common predisposing agent to hepatocellular cancer of the liver was cirrhosis of any cause, the commonest cause being hepatitis B, alcohol being another. There was no evidence of either of these factors being present in Mr Smith. In the absence of any other factor he had developed hepatocellular carcinoma at what would be the right time and in what would be the right part of his body if he had had exposure to thorium on active service. This seemed more than coincidental. The risks from radiation exposure increase with the dose, and over the years the level of what is considered to be permissible exposure has dropped and dropped. Thorium is an alpha particle emitter, which means that one rad of radiation exposure from thorium is worth 20 times as much, in terms of radio-biological damage, as one rad of X-rays. The thorium could have been ingested from contamination of fingers and food. Once in the body it would remain there. It could get to the liver through either the bloodstream or the lymphatic system. The dose required to cause cancer was so small that it would not necessarily show up on X-ray 30 years later. With such a long latency period it would often be difficult to trace people who had worked in a particular industry and see whether they had developed cancer from industrial exposure to thorium. The longer a person lived after exposure, the more likely the person was to develop cancer. It seemed likely that the person who ordered the full blood test in 1945 thought that Mr Smith's exposure to radiation was sufficient to render such a test desirable.

20. Having considered the whole of the material before me, in the light of the authorities to which I have referred, I am of the opinion that the material before me raises the hypothesis submitted by the respondent and set out in paragraph 15 supra, and that that hypothesis is reasonable. I am therefore not satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr Smith's death was war-caused. The decision under review will be affirmed.