Turner and Repatriation Commission [2002] AATA 799 (12 September 2002)

Last Updated: 19 September 2002

DECISION AND REASONS FOR DECISION [2002] AATA 799

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1331

VETERANS' APPEALS DIVISION )

Re JOAN HASTE TURNER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member Dr M E C Thorpe, Member

Date 12 September 2002

Place Sydney

Decision The tribunal sets aside the decision under review and decides that the veteran died as a result of the war-caused disease of malignant neoplasm of the lung. The applicant qualifies for a war Widow Pension with effect from 26 August 1997

[SGD] M J SASSELLA

Senior Member

CATCHWORDS

VETERANS' ENTITLEMENTS - War Widow Pension - metastatic cancer primary unknown - malignant neoplasm of the lung - war-caused smoking as cause of disease causing death decision set aside

PROCEDURE - concurrent evidence taken

Veterans' Entitlements Act 1986 ss 7(1)(a), 11(1), 14(3), 20(2), 120(1), (3), (4).

Statement of Principles 35/2001 concerning malignant neoplasm of the lung.

Benjamin v Repatriation Commission (2001) 34 AAR 270

Budworth v Repatriation Commission (2001) 63 ALD 402

Cooke, Repatriation Commission v (1998) 90 FCR 307

Deledio, Repatriation Commission v (1998) 49 ALD 193

Smith, Repatriation Commission v (1987) 74 ALR 537

Temple and Repatriation Commission, Re [2001] AATA 490

REASONS FOR DECISION

12 September 2002 Mr M J Sassella, Senior Member Dr M E C Thorpe, Member

HISTORY OF APPLICATION

1. On 7 October 1997 Joan Haste Turner ("the applicant") lodged an informal claim form with the Department of Veterans' Affairs ("the DVA") for a War Widow Pension (T5).

2. On 1 December 1997 the applicant lodged a formal claim form with the DVA for War Widow Pension (T6). The applicant's husband, Maurice John Turner ("the veteran") was said to have died from frequency of vomitings secondary to superimposed urinary tract infection (T6/28) and it was the applicant's contention that his service would have exposed him to asbestos lining in gun turrets. It was this exposure to asbestos that she said led to a general deterioration in his health from around 1954 and eventually to his death on 25 August 1997.

3. On 11 December 1997 the Repatriation Commission ("the respondent") decided that the veteran's death was not related to service (T8). The respondent could find no link between the veteran's condition and his service. The evidence did not raise a reasonable hypothesis connecting the death of the veteran with his service.

4. On 9 March 1998 the applicant lodged a request with the DVA for a review of her application pursuant to s 31 of the Veterans' Entitlements Act 1986 ("the Act") (T9).

5. On 16 April 1998 the DVA wrote to the applicant informing her that it had elected not to conduct a s 31 review of her application because there was no additional evidence that would alter the respondent's determination of 11 December 1997 (T10).

6. On 1 May 1998 the applicant sent additional evidence to the DVA with the intention of obtaining a s 31 review (T11). She attached her own statement and a "claimant report - cigarette smoking". In the event that a s 31 review were declined, the applicant requested a review by the Veterans' Review Board ("the VRB").

7. On 25 May 1998 the DVA again wrote to the applicant informing her that it had elected not to conduct a s 31 review of her application (T12). The application then went before the VRB.

reviewable decision

8. On 10 July 2000 the VRB affirmed the Repatriation Commission decision of 11 December 1997 (T14). It was the applicant's contention that the Statement of Principles ("SoP") no 23 of 1996 concerning malignant neoplasm of the colon was relevant and that the origin of the veteran's cancer was in his large bowel. The applicant submitted that the veteran, who was a social smoker (5-6 cigarettes a week) before his service, started smoking 25-30 cigarettes a day during his army service.

9. The VRB found that there was no reliable expert medical evidence that the cancer originated in the colon, and further that the medical reports of Drs Lubowski and Felbel provided no definitive diagnosis of the origin of the cancer. In order for the veteran's cancer to meet the requirements of the relevant SoP, the cancer would have to meet the SoP definition of malignant neoplasm of the colon and, without a definitive medical opinion, this could not be done. The VRB needed to be satisfied that it was more probable than not that the cancer in the veteran's abdomen was related to a primary malignant neoplasm of the colon. Neither of the medical experts came to this conclusion. Therefore the VRB was unable to apply the SoP, not being reasonably satisfied that the veteran suffered from the relevant condition. The VRB found no evidence relating the death of the veteran to his war service and therefore no reasonable hypothesis was raised to this effect.

10. The applicant lodged an application for review of the VRB decision with the Administrative Appeals Tribunal ("the tribunal") on 18 August 2000 (T1).

BACKGROUND

11. The veteran rendered operational service in the Australian Army from 26 December 1941 to 18 April 1946 in World War II (T2).

12. The Applicant and the veteran were married on 13 February 1942. He retired on 19 May 1978 (T5/29).

13. The veteran died on 25 August 1997 from "(a) Frequency of vomitings secondary to super imposed urinary tract infection" and "(b) Cancer abdomen - undifferentiated large cell - primary unknown metastasis - abdomen" (T6/28).

HEARING

14. The tribunal convened a hearing in this matter in Sydney on 24 August 2001. Mr M Vincent of counsel represented the applicant and Mr P Godwin of the DVA Advocacy Service the respondent. Oral evidence was presented from Professors Shepherd and Langlands.

15. The tribunal had access to the following documents which were taken into evidence:

* Exhibit TD1 - Section 37 Statement and associated documents (T1 - T17) provided by the respondent.

* Exhibit A1 - Applicant's amended statement of facts and contentions, 23 August 2001.

* Exhibit A2 - Report by Professor J J Shepherd, surgeon, 6 April 2001.

* Exhibit A3 - Report by Professor Shepherd, 10 August 2001.

* Exhibit A4 - Statement by applicant, 1 March 2001.

* Exhibit R1 - Respondent's statement of facts and contentions, 25 May 2001.

* Exhibit R2 - Report by Professor A Langlands, oncologist, 20 April 2001.

* Exhibit R3 - Report by Professor Langlands, 21 August 2001.

* Exhibit R4 - Dr Gilkes' clinical notes.

* Exhibit R5 - Calvary Hospital, Kogarah clinical notes.

16. There was insufficient time for final submissions at the hearing. The tribunal allowed the parties time to provide written submissions. Submissions due from the applicant on 20 September 2001 were eventually provided on 28 May 2002 (ex AH1). At the hearing it had been agreed that the respondent would have three weeks in which to respond. In the event the respondent's submissions were received on 21 June 2002 (ex AH2). On 14 August 2002 the applicant's solicitor informed the tribunal that the applicant had no response to make to the respondent's submissions.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

17. The tribunal makes the following uncontroversial findings.

18. The veteran was born on 7 December 1914 and died on 25 August 1997 (T6/21, T6/28). The applicant was married to the veteran on 13 February 1942 (T6/22). The tribunal therefore finds that Mrs Turner, the applicant, was the deceased veteran's dependant in accordance with s 11(1) of the Act. This is a required first step if Mrs Turner is to succeed in her claim.

19. The applicant served in the army and rendered operational service from 26 December 1941 until 18 April 1946 (T2). This was eligible war service for the purpose of a War Widow Pension (s 7(1)(a) of the Act).

20. The applicant lodged valid claims, one informal on 7 October 1997 (T5, ss 14(3), 20(2) of the Act) and a formal claim on 1 December 1997 (T6, s 14(3) of the Act).

21. The date of effect of any decision favourable to the applicant would be 26 August 1997, the day after Mr Turner died.

22. The standard of proof in relation to whether Mr Turner's death was due to a war-caused disease is the reasonable hypothesis standard (s 120(1), (3) of the Act). The standard in relation to diagnosis of the kind of death that affected Mr Turner is that of reasonable satisfaction (s 120(4) of the Act). This standard equates to acceptance on the balance of probabilities (Repatriation Commission v Smith (1987) 74 ALR 537, 547).

the hypothesis

23. As stated in the applicant's final submissions (ex AH1) the hypothesis raised was that Mr Turner developed a war-caused smoking habit that caused the cancer in his lung (or, although much less likely, in his pancreas, bladder or kidney) that metastasised into the cancer in his abdomen and that Mr Turner died from complications associated with that secondary cancer.

24. The full Federal Court has held that, in an operational service case such as this, there are four steps to be considered in assessing whether an applicant will succeed in her claim that the death of a veteran was war-caused. The authority is Repatriation Commission v Deledio (1998) 49 ALD 193, 206.

25. The first step is to consider whether the material before the tribunal points to a hypothesis connecting the death with the circumstances of the particular service rendered by the veteran. The hypothesis in this case is that in paragraph 23 above.

26. The second step is to ascertain whether there is a relevant SoP in force. The SoP concerning malignant neoplasm of the lung is SoP 35/2001.

27. The third step is to form an opinion as to whether the hypothesis raised is reasonable. If the hypothesis is consistent with the template in the SoP it will be reasonable. The hypothesis raised must contain at least one of the factors in the SoP which the SoP says must exist, and that factor must be related to the applicant's service.

28. However, the first issue in assessing the hypothesis is to decide on a diagnosis. This is essential in order to identify the applicable SoP. The Federal Court said as much in Benjamin v Repatriation Commission (2001) 34 AAR 270. It is well established that matters of diagnosis are resolved according to the reasonable satisfaction standard, however Mr Vincent, for the applicant, submitted that the issue of the cause of death, where death is said to have been war-caused, is a matter resolved by reasonable hypothesis.

29. There is a certain logic in Mr Vincent's approach. In a disease or injury case the analysis is in two steps. The first is to identify on the balance of probabilities the nature of the injury or disease. The cause is then, in an operational service case, a matter of reasonable hypothesis. By analogy, in a death case the injury, death, is self-evident. It can be established very simply on the balance of probabilities. What caused that death then becomes a matter of reasonable hypothesis.

30. Against that position Mr Godwin in his submissions (ex AH2) argued that the characterisation of the disease, injury or death, for the purposes of determining whether or not a SoP is in force in respect of that kind of disease, injury or death is separate from the question of whether the claim relates to a veteran's operational service.

31. The tribunal considers that the better view is that proposed by Mr Godwin. Further, on the tribunal's reading of the authorities, it is the approach sanctioned by the Federal Court. Mr Godwin cited the full Federal Court decision in Benjamin (above) where the court said at page 283:

"55 The first question for the Tribunal will be how to characterise the psychiatric problems exhibited by the veteran. If the Tribunal is satisfied that the symptoms constitute an injury or disease, the second question will be whether there is an SoP in force in respect of the disease. The diagnosis of that disease, and the determination of whether or not there is an SoP in force in respect of that kind of disease, falls for determination according to the standard of proof laid down in s 120(4). The characterisation of a disease (or injury or death in an appropriate case), for the purposes of determining whether or not an SoP is in force in respect of that kind of disease (or injury or death), is separate from the question of whether a claim relates to the operational service rendered by a veteran within s 120(1). The standard of proof laid down by s 120(1) has no application to the former question." (Tribunal's emphasis)

32. Mr Vincent had relied in the hearing on a passage in the full Federal Court decision in Repatriation Commission v Cooke (footnote 3 above) at 311-312 where their Honours wrote:

"Both the appellant and the respondent relied upon the legislative history of s 120 of the Act and its predecessors for their respective opposing submissions. The legislative history is conveniently contained in the reasons for judgment of a Full Court of this court in East v Repatriation Commission (1987) 16 FCR 517 at 518-527. Mr P J Hanks, counsel for the appellant, submitted (and it is well accepted) that Parliament had reacted to the High Court's decision in Repatriation Commission v O'Brien (1985) 155 CLR 422 by introducing the concept of a reasonable hypothesis where the question was whether an injury, disease or death was war-caused. Parliament had, so he submitted, also introduced s 120 (4) to deal with every other question. Mr H N H Christie, counsel for the respondent, contended that the legislative history clearly indicated to the contrary. He pointed out that, when the reverse criminal standard of proof was introduced in 1977 by amendment to s 47 (2) (a provision which may be regarded as a predecessor of s 120 of the Act), all matters were to be dealt with by that standard. That is, all matters in relation to a claim for a pension for disability based on war service. Mr Christie submitted that there was no suggestion at the time of the 1985 amendments (the amendments in response to O'Brien) that the reverse criminal standard of proof was being removed in relation to the issue of the existence of a disease. The hypothesis was simply introduced in order to deal with the connection between the disease and war service. He relied upon a paragraph in the minister's second reading speech which was in these terms:

'Subclause 119 (1) will require a favourable determination to be made in relation to a pension claim unless the Repatriation Commission is satisfied beyond reasonable doubt that there is no sufficient ground for doing so.'

"But it is quite clear from the very next sentence in the Minister's speech that he was dealing with the matter of a service connection to a veteran's death or incapacity. Mr Christie suggested that there would be anomalies. He gave some examples. One was that a veteran might make a claim for a depressive disorder which was disputed. If, before the hearing of that dispute, the veteran were found dead in circumstances where suicide was an open question, there would be a separate standard of proof to be applied to the veteran's claim from that which would be applied to the widow's claim. The Commission or the Tribunal would make its decision as to whether a depressive disorder existed, to its reasonable satisfaction. But the question whether a depressive order existed, to meet the hypothesis of death by suicide as a result of the depressive disorder as a result of war service, would be governed by a combination of s 120 (3) and (1).

"In our view there are two answers to those contentions. First, the language of s 120 (1) and (3) is so clear as to not raise any doubt on the point. Secondly, any suggested illogicality disappears when one focuses on the task in hand. In the example given above, the task at hand when deciding the incapacity claim is, initially, whether there is or was a disease. The evidence is far more readily available on that issue (in the main medical evidence, one would suppose) than matters of war-causation which involve assessment of events which may have taken place as long ago as half a century. It makes very good sense, in our opinion, to apply, as s 120 (4) of the Act requires, a civil standard of proof to the former question and the more liberal reverse criminal standard of proof to the latter question. Furthermore, one should not overlook the ameliorative effects of s 120 (5) and (6) in relation to difficulties in establishing facts.

"In our respectful opinion Lee J was correct in Ferriday (the decision which Beazley J declined to follow in Preston and which the tribunal distinguished in this matter) when he said (at ALD 533; ALR 74):

'Facts which may be germane to establishing a right to a pension under the Act but not part of the question of causal connection between a morbid condition and a relevant circumstance of operational service addressed under s 120 (1) are facts to be established to the reasonable satisfaction of the Commission.'" (Tribunal's emphasis)

33. In our view the passage cited by Mr Vincent does not greatly assist us. Not only is it obiter dictum, it is no more than their Honours quoting an argument by counsel which was part of a total package of argumentation rejected by their Honours. In rejecting the example put to them they did not explicitly quarrel with the suggestion that the nature of an allegedly war-caused death is a matter for reasonable hypothesis but, given their disposal of Mr Christie's argument, they did not really need to. More than that, however, the tribunal refers to an earlier passage in the Cooke case (above) where, as in Benjamin (above), the court did not differentiate between death, disease or injury in considering whether a relevant disease exists. At page 310 their Honours wrote:

"In our opinion, the appeal should be allowed. We think that it is quite clear that the issue whether a disease exists is to be decided to the reasonable satisfaction of the Commission. In other words, s 120 (1) and (3) assume the present existence of a relevant condition, in this case a disease. Section 120 (1) specifies the standard of proof for the determination whether or not that disease relates to the operational service rendered by the veteran. Section 120 (3) provides for one situation in which that standard is to be taken as having been satisfied. The work of each subsection is to provide the standard of proof for establishing a causal connection between disease and service. That standard applies only to a 'determination that the disease is war-caused. This can be seen by examining the precise subject matter and purpose of s 120 (1) as revealed in the language in which it is expressed. The subsection speaks of:

* 'the' incapacity from injury or disease of a veteran;

* 'the' death of a veteran

and requires the Commission to determine that

* 'the' injury was a war-caused injury; or

* 'the' disease was a war-caused disease; or

* 'the' death was war-caused

unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. The subject matter and purpose of the subsection are confined to the standard of proof of war-causation."

34. Consideration of the disease causing death brings in the medical evidence which, at the hearing, was largely provided by Professors Shepherd and Langlands. Each had provided several medical reports.

35. On 6 April 2001 Professor Shepherd provided a report on the veteran (ex A2). He disagreed with the VRB finding that it was impossible to ascertain where the primary site of the carcinoma was:

"In my opinion this statement is quite incorrect. It is perfectly possible to state not only the possible but the probable primary sites for secondary metastatic large cell tumours....In my opinion, purely on statistical grounds, the most likely primary site for any metastatic cancer undifferentiated large cell carcinoma is the lung...

...

Even though the metastasis was in the abdominal wall this does not mean that the primary lesion was in the abdomen..."

36. It was the Professor's opinion that the most likely site of the cancer was the lung. Other likely sites were the pancreas, the kidney and bladder. He further addressed the relevant SoPs, firstly in relation to malignant neoplasm of the lung. It was his opinion that the veteran met the requirement of factor 5(v), having smoked cigarettes or other tobacco products for at least one half of a pack-year before the clinical onset of malignant neoplasm of the lung:

"The hospital records and the medical advice that he should give up smoking in 1998 appears to support the statement of Mrs Turner indicating that the veteran clearly satisfied the relevant Statement of Principles concerning cancer of the lung."

37. It was also Professor Shepherd's opinion that the veteran met the requirement at factor 5(a) of the SoP concerning cancer of the pancreas in that he had smoked cigarettes for at least 10 pack years before clinical onset of the condition and, where smoking had ceased, clinical onset had occurred within 20 years of cessation.

38. Professor Shepherd then addressed the SoP concerning malignant neoplasm of the bladder, in particular factor 5(e). He found that the veteran met the requirement of having smoked for 2.5 pack years prior to the clinical onset of the condition.

39. The final condition that was addressed in this report was that of adenocarcinoma of the kidney. Professor Shepherd found that the veteran met all three of factors 5(a)(i), (ii) and (iii):

* The veteran had 15 pack years of smoking before clinical onset of the adenocarcinoma.

* Smoking commenced at least 10 years before the clinical onset of the condition.

* Where smoking had ceased, the clinical onset occurred within 20 years of cessation.

40. Professor Shepherd concluded his report:

"In summary therefore, whilst there cannot be 100% certainty, from the available information concerning the site of the primary large cell carcinoma in Mr Turner, from personal experience and from a review of the medical literature there is a high probability that it occurred in one of these four sites and in respect of all four the veteran's smoking history fulfils the criteria laid in the Statements of Principles."

41. Professor Shepherd noted medical research by W B Saunders in 1991, an article by Greco et al in Cancer Clinics in 1992 and an article by Didolkar in the Annals of Surgery in 1977 in support of his findings.

42. On 20 April 2001 Professor A Langlands, an oncologist, reported on the applicant at the request of the respondent (ex R2). He wrote a detailed history of the veteran's various medical conditions and stated that:

"Metastatic carcinoma, primary unknown, is a distinct clinical syndrome, in which the primary site may never be established even in cases undergoing post-mortem examination. What is more when primary sites are eventually identified, their frequency is never that of cancer as it occurs in the general population. In my opinion the likeliest primary site is the squamous cell carcinomas removed from his legs some years previously. I say so for the following reasons:

(i) Squamous cell carcinomas do not readily disseminate widely but when that occurs skin and/or muscle can be involved.

(ii) A not uncommon finding when such metastases are excised or biopsied is the finding, as here, of 'cheesy material' within the deposit.

(iii) The tumour showed immunocytochemical staining for cytokeratin and squamous cell carcinoma, was one of three possible diagnoses offered by the pathologist.

"I feel confident that the tumour identified in 1997 has no relationship whatsoever to the surgery undertaken over 40 years earlier, whatever pathology is postulated, apart from its location in or adjacent to the scar."

43. Professor Langlands thought it impossible to establish any relationship to war service if the diagnosis of unknown primary site is accepted. "Certainly the mechanisms of smoking or exposure to asbestos are fanciful in the above context." Further it was his opinion that the veteran died from causes other than the cancer present at this death. Only three months previous to his death the veteran had undergone a CT scan which showed "no intra-abdominal abnormalities which would justify the recording of the second cause of death as cancer of the abdomen."

44. On 10 August Professor Shepherd provided a supplementary report (ex A3). He stated that the most likely cause of death of the veteran, on the balance of probabilities was an "aggressive metastasising cancer." In making this finding he noted the hospital records and the reports of the treating doctors. The "frequency of vomitings..." that was stated on the death certificate as being a cause of death was ruled out by Professor Shepherd as a significant contributing factor in the veteran's death because of the lack of reference to this condition in the medical documentation. Based on the report of Professor Langlands (ex R2), he revised his opinion on the likely primary site of the cancer:

"When the primary site of an undifferentiated large cell carcinoma is unknown, on the basis of probabilities it could be suggested that around 40% to 45% of primaries would be in the abdomen, a similar figure in the chest and perhaps 10% to 15% in the head and neck or limbs. These were the figures I considered in my initial report. However given the additional information that there was no evidence of any intra-abdominal primary on CT scan the situation is different. If we accept that the primary was either in the chest, the head and neck or limbs my opinion is that there would be a 70% to 80% chance that the primary was in the chest and only a 20% or 30% chance that it was in the head and neck or limbs.

"Having had the opportunity to read the report of Prof Langlands I agree with his opinion in 3, part i, that squamous cell carcinomas do not readily disseminate widely but when that occurs skin and/or muscle can be involved. The use of the word 'can' somewhat conceals the fact that whilst anything can happen this is definitely a rare occurrence. Prof Langlands does not deal anywhere with the balance of probabilities. There is no record of the size, depth or duration of the primary skin cancers in Mr Turner's legs...Rather than saying that squamous cell carcinomas 'do not readily disseminate widely' I would say that the probability of a small well differentiated squamous cell carcinoma of the leg disseminating widely is less than 1%. Rather than saying that 'when that occurs skin and/or muscle can be involved' I would say that the probability is that 99% would metastasise first to the local lymph nodes behind the knee or in the groin or occasionally to the lung and that less than 1% would metastasise to the skin or muscle of the abdominal wall."

45. Further to these findings Professor Shepherd stated that there was no justification for a diagnosis of uraemia, as was stated in the report of Professor Langlands. Laboratory analysis of serum showed only a "modest elevation above the normal levels." Also, based on evidence from Australian Cancer Registries Mr Turner, being an above average smoker, had a 40% probability of dying from lung cancer "if we had no further information at all material to his case." He took into account the extra information that a biopsy provided and stated that:

"...the most common unknown primary in this situation is lung cancer, that a colonoscopy (though not conclusive) makes a primary in the rectum or colon unlikely, that a CT scan of abdomen (though not conclusive) makes a primary in pancreas, kidney, stomach or bladder unlikely and showed no enlarged lymph nodes in the groin as are almost always present if he had an aggressive skin cancer in the leg, the probability of over 40% is substantially enhanced and becomes in my opinion 70% to 80%..."

46. On 21 August 2001 Professor Langlands provided a second report on the veteran (ex R3). He confirmed his opinion in his earlier report and strongly disagreed with that of Professor Shepherd for the following reasons:

* The formal pathology report did not describe metastatic large cell carcinoma, but rather "metastatic undifferentiated carcinoma...no clue as to likely primary site can be offered."

* It is incorrect to describe possible primary sites on statistical grounds because the pattern of the metastases "is often bizarre."

* Professor Shepherd used selective reports on which to support his findings:

(a) Professor Langlands cited his own report from Westmead in 1987 that in terms of primary sites lung was the commonest, then pancreas, but bladder and kidney were rare.

(b) The pathologist suggested three possible primary sites for the deposit in the abdominal wall scar, one of which was the squamous cell carcinoma.

(c) Six months prior to the veteran's terminal admission, he had undergone a CT scan of the abdomen. Professor Shepherd referred to the paper by Nystrom et al 1979 but that paper was descriptive of the inadequacy of x-rays in determining primary sites. The veteran's CT scan revealed no intra-abdominal malignancy and no primary site in the pancreas or kidney. Professor Shepherd stressed the frequency with which the primary site was located by a CT scan in the pancreas or kidney in addition to the lung.

47. It was Professor Shepherd's opinion that the veteran was in renal failure exacerbated by diabetes and prostatism: "Mr Turner, in my opinion, died with cancer present but not from cancer."

48. The parties had arranged for Professors Shepherd and Langlands to give evidence at the tribunal hearing by telephone. The tribunal had read their reports and was of the view that it would be desirable to take concurrent evidence from them, if the parties agreed and if the doctors agreed and could rearrange their schedules to be available at the same time. The concurrent evidence procedure was used by the tribunal in Re Temple and Repatriation Commission [2001] AATA 490. In the reasons for decision in that case the presiding member wrote in paragraph 67:

"The practice of calling two medical expert witnesses together is still unusual within the Tribunal. I consider it appropriate to record how helpful I found it to be and to express the Tribunal's appreciation to the doctors for their cooperation, and to the representatives for their assistance in making the necessary arrangements. I suggest that the approach be adopted more frequently. There is benefit in the more investigative and less adversarial approach."

49. The concurrent evidence exercise carried out in the instant case was probably less satisfactory than that in Re Temple (above) because the experts had to communicate with each other and the tribunal participants by telephone over a line that was not of high quality. Nevertheless, the exercise was helpful in securing some agreement or common ground as between the two experts.

50. During the concurrent evidence process it became even clearer that Professor Langlands found Professor Shepherd's method of using statistical probability as regards the most likely site of a cancer that indirectly brought about Mr Turner's death unacceptable. However, from the tribunal's point of view, Professor Shepherd's methodology is viable in the context of legal proceedings where certainty cannot be established. As Professor Langlands pointed out, metastatic carcinoma, primary unknown, is a distinct clinical syndrome in which the primary site may never be established even where a post-mortem examination is conducted. The tribunal must reach only a state of reasonable satisfaction which, we consider, we may do on the basis of statistical probabilities which have some scientific basis.

51. A related problem for us in accepting and utilising Professor Langlands' assessment is that the probability of the site of the primary cancer being the squamous cell carcinomas removed from Mr Turner's legs some years previously was about one in 10,000 (ex A3). It seems to the tribunal that the likelihood of the lung being the correct site is considerably stronger.

52. In the course of the concurrent evidence procedure there was a series of exchanges between Professor Langlands and Mr Vincent. During those exchanges the following emerged:

* Professor Langlands identified as the most common cancers associated with metastatic carcinoma, primary unknown, the same cancers as Professor Shepherd.

* Further, he said that in cases where the association is established the only cancer commonly associated is cancer of the lung. Others were the pancreas and kidney but, said Professor Langlands, not the bladder.

* Certain very common cancers, breast cancer in women and prostate cancer in men, are seldom, if ever, associated with metastatic cancer, primary unknown.

* There would be no logical problem if a person with the requisite expertise said in respect of an individual presenting with meteastatic cancer, primary unknown, "I do not know where the primary was but, of all possible sites, the lung is, relative to any other site, the most likely".

53. When that final proposition was put to Professor Langlands he said, "Right, I'll buy that."

54. On the basis of Professor Shepherd's comments on vomiting as a cause of death, the tribunal finds that the death certificate erred in identifying that as the cause of death (see paragraph 44 above). Professor Shepherd addressed this matter further during the hearing and the tribunal was even more firmly convinced by his evidence. Further, the tribunal, on the basis of the totality of the medical evidence, finds itself reasonably satisfied that primary cancer was cancer of the lung.

55. The tribunal therefore finds that the appropriate SoP is that concerning malignant neoplasm of the lung. The factor in SoP 35/2001 that reflects the hypothesis is factor 5(a) and (b):

(a) for each of the following types of malignant neoplasm of the lung:

(i) squamous cell carcinoma,

(ii) small cell carcinoma,

(iii) malignant neoplasm of undetermined histology,

(iv) large cell carcinoma, or

(v) carcinosarcoma

(A) smoking at least one half of a pack year of cigarettes or the equivalent thereof in other tobacco products, and

(B) smoking commenced at least five years before the clinical onset of malignant neoplasm of the lung; or

(b) for adenocarcinoma of the lung only:

(i) smoking at least three pack years of cigarettes or the equivalent thereof in other tobacco products, and

(ii) smoking commenced at least five years before the clinical onset of malignant neoplasm of the lung; or

56. Clause 4 of the SoP requires that such smoking must have been related to Mr Turner's operational service.

57. The respondent made a concession in its statement of facts and contentions (ex R1):

"However, should the Tribunal be satisfied on the balance of probabilities that Mr Turner's cancer did contribute to his death and that the site of the primary carcinoma was in the lung, ..., the respondent concedes that Mr Turner's cigarette consumption was related to his service and amounted to consumption of at least 45 pack years of cigarettes or tobacco products".

58. The tribunal is of course not bound by concessions made by either party and ideally satisfies itself as to factual matters. However, in the tribunal's experience such a concession is seldom made by the Repatriation Commission in matters such as this. Certainly for the purposes of establishing whether the hypothesis is reasonable such a concession can only assist in allowing that the hypothesis meshes with the SoP requirements.

59. The tribunal finds that the requirements in the SoP are reflected in the hypothesis. Step 3 of the Deledio (above) principles is therefore satisfied. The tribunal sees nothing in the material before it to suggest that the hypothesis is fanciful, impossible, incredible, too remote or too tenuous. The hypothesis is therefore a reasonable hypothesis.

60. Moving on to consider step four of Deledio (supra), the tribunal must decide whether it is satisfied beyond reasonable doubt that the veteran's death did not arise from a war-caused disease. The tribunal is not, on the basis of the material before it, satisfied beyond reasonable doubt that the veteran's death was not war-caused. The tribunal considered that the death certificate in this case, as in many others was relevant as evidence of the cause of death but in no way decisive. It is well understood that the cause of death as it appears on a death certificate never represents more than the certifying doctor's best assessment of the cause of death on the basis of what he or she knows at the time immediately after the death. It is not unknown for a different cause to be discerned at post mortem. Thus, the certificate's identification of frequent vomiting, which of course was queried in any event by Professor Shepherd, and cancer of the abdomen as causing death in no way binds the tribunal. The tribunal found Professor Shepherd's views constructive and helpful whereas Professor Langlands tended to concentrate more on what he saw as definitely not the cause of death. He was considerably less helpful in proposing what might have been the cause of death. Professor Shepherd appeared to the tribunal to understand rather better the nature of the task before the tribunal, and the VRB and the respondent for that matter. In the context of decision-making based on reasonable hypothesis, and probably even based on reasonable satisfaction, statistical probabilities, in the absence of more direct evidence on cause and effect is perfectly acceptable. The tribunal, therefore, did not find Professor Langlands' expressed reservations sufficient to convince it beyond a reasonable doubt that the veteran's death was not war-caused.

CONCLUSION

61. The tribunal has found that the veteran's death was caused, at least indirectly, by malignant neoplasm of the lung which was a war-caused disease. This means that the applicant has succeeded in her application for review.

DECISION

62. The tribunal sets aside the decision under review and decides that the veteran died as a result of the war-caused disease of malignant neoplasm of the lung. The applicant qualifies for a war Widow Pension with effect from 26 August 1997.

I certify that the 62 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Dr M E C Thorpe, Member

Signed: .....................................................................................

Associate

Date of Hearing 24 August 2001

Date of final submissions 21 June 2002

Date of Decision 12 September 2002

Counsel for the Applicant Mr M Vincent

Solicitor for the Applicant Dibbs Barker Gosling

Counsel for the Respondent Mr P Godwin, DVA Advocacy Service

Solicitor for the Respondent Mr J Marsh, DVA