The First Issue
14 In addressing the first issue, I need to consider the hypothesis proposed, and test it in the context of the facts and findings made by the Tribunal, and the material that the Tribunal considered in support of its findings.
15 The hypothesis relevantly considered by the Tribunal was that the veteran's service exposed him to the use of petroleum products which caused exposure to benzene which precipitated, or was responsible for myelofibrosis, which in turn caused death.
16 The facts and findings of the Tribunal were not essentially in dispute and can be summarised as follows:
· The veteran used petrol and petroleum products during service.
· The duration, extent, and quantity of the usage was unknown.
· The petroleum to which the veteran was exposed contained benzene.
· The period of possible exposure was approximately 12 months when the veteran cleaned guns and machinery in the Northern Territory.
· That exposure was over 52 years before the veteran contracted myelofibrosis.
· The kind of death suffered by the veteran was myelofibrosis.
17 The question for me is whether there was sufficient material before the Tribunal pointing to or supporting a reasonable hypothesis connecting the veteran's death with the circumstances of his service having regard to these facts. I say having regard to these facts because the reasonableness of the hypothesis is to be considered in the context of the relevant factual scenario. This includes that exposure to benzene occurred some 52 years before the veteran contracted myelofibrosis, and was at best intermittent whilst cleaning guns and machinery over a period of approximately 12 months: see, e.g. the approach taken in Whetton 31 FCR 513. This is not to say that proof of any of these facts is necessary at this stage, just that they needed to be considered in connection with the hypothesis before the Tribunal.
18 I should mention, however, that in this case the hypothesis relied upon is not itself limited to the time and duration of exposure to benzene, to which I will refer as the temporal issues. Whilst I have come to the view that there is sufficient evidence to support the findings of the Tribunal even on the basis of the temporal issues, the necessity for such evidence is not to be assumed. As was said in East v Repatriation Commission (1987) 16 FCR 517 at 533:
The necessity for quantitative evidence in a particular case must depend upon the nature of the hypothesis being expounded. For example, if a Tribunal accepts medical evidence that condition B may be caused by any degree of exposure to factor A, that the veteran was exposed to factor A and that he or she subsequently developed condition B, it would be wrong to reject the claim because of an absence of evidence as to the extent of the exposure. The hypothesis itself makes quantity irrelevant. If, on the other hand, the evidence is that exposure to quantity X of factor A may cause condition B, the hypothesis cannot be described as reasonable unless there is reason to believe that the veteran was exposed to factor A to the extent of quantity X.
19 I turn to the evidence before the Tribunal. Two experts were called by the applicant - Professor Fox (a haematologist) and Professor Peach (an epidemiologist). I need not rehearse their evidence except to say they both held the view that there was no connection between exposure to benzene and the contraction of myelofibrosis, especially in the circumstances of the temporal issues raised in this case. I accept that their evidence (without more) could have led to the conclusion that the hypothesis considered by the Tribunal would not have been reasonable. The Tribunal similarly regarded that as the likely position. As the Tribunal observed at [91]:
On the evidence of Professors Fox and Peach alone, it might be thought that medical and/or scientific opinion would not support the hypothesis, and that there was an absence of support within the medical profession and other scientists for the connection between benzene and myelofibrosis.
20 However, as the Tribunal went on to observe, more information was available and was before the Tribunal.
21 The applicant contended that this further material cannot support the hypothesis, particularly when one considers the temporal issues, and that the Tribunal failed to consider, as s 120(3) of the VE Act requires, whether the whole of the material before it raised a reasonable hypothesis connecting the veteran's death with the circumstances of the particular service rendered by the veteran. Undoubtedly s 120(3) of the VE Act requires the Tribunal to consider that connection. In my view, the Tribunal did undertake that enquiry and it was open for the Tribunal on the whole of the material before it to reach its conclusions.
22 In my view, the applicant underestimated the impact of the other material (in addition to the evidence of Professors Peach and Fox) before the Tribunal and, in particular, the evidence of Dr Collins who was called by the respondent. In fact, if accepted, the evidence of Dr Collins could in itself sufficiently point to the connecting hypothesis, even taking into account the temporal issues.
23 Dr Collins (a pathologist) prepared two written reports which were in evidence before the Tribunal. He was not required for cross examination and he did not appear before the Tribunal. The representative of the applicant stated before the Tribunal, when indicating that Dr Collins was not required for cross-examination, that it was for the Tribunal to decide "how much evidence (sic) to give to Dr Collins' reports without cross-examination". It was a forensic decision made by the applicant not to cross-examine Dr Collins, and the Tribunal was invited to and was entitled to place appropriate weight upon the reports of Dr Collins as tendered.
24 It cannot be said that Dr Collins' reports should have been completely disregarded by the Tribunal. Dr Collins maintained his position in support of the hypothesis contended. Whilst the applicant may regard Dr Collins' position as unconvincing, the Tribunal obviously did not regard the opinion of Dr Collins as worthless, and was entitled to rely upon it to reach its conclusions. The Tribunal, having received the evidence of Dr Collins, considered his opinion, and weighed that opinion in light of the whole of the material before it.
25 In his first report, Dr Collins made two important statements:
It has been generally accepted that in primary myelofibrosis, there is no definitively known cause and hence the use of various terminologies for this condition, such as "idiopathic" or "agnogenic" although with recent research these descriptive terms would appear somewhat inappropriate. The development of this form of the disease has been linked to exposure to petroleum derivatives, particularly toluene and benzene, or to ionizing radiation (see accompanying example article by Tondel).
It has been suggested that, as a Bofors gunner during the war, the late Mr Farley-Smith may have been exposed to petrol/benzene. If such a suggestion can be appropriately substantiated then, in my opinion, there is a real possibility his death was war associated through the link between benzene exposure causing toxic effects on the bone marrow which then resulted in myelofibrosis. [emphasis added]
26 I observe that the reference to the article by Tondel (Tondel, et al, 'Myelofibrosis and Benzene Exposure' (1995)) is only by way of example to support his conclusion. I also observe that Dr Collins was aware that the veteran's exposure to benzene was as "a Bofors gunner" and during the war, and thus was aware of the substantial gap in years between exposure and death, and probably between exposure and the time the veteran contracted myelofibrosis, and of the general nature of the veteran's exposure.
27 Further, in his second report dated 15 June 2004, he referred to the report of Professor Peach dated 26 March 2004, where Professor Peach raised the temporal issues in the following manner:
The widow is hypothesising that a relatively short, intermittent exposure to benzene can cause myelofibrosis more than 50 years after such exposure has ceased.
Nevertheless, Dr Collins still maintained his view as to the causal link between benzene and myelofibrosis. It cannot be said that Dr Collins was not aware of the temporal issues, and that his view should be disregarded on this account.
28 Before me, an attack was sought to be made of Dr Collins on the basis that he was not qualified at all, and certainly not as qualified as the expert witnesses called by the applicant. This was not raised before the Tribunal and, as I have said, his reports were tendered without objection. I note that Dr Collins is described in his reports as a Consultant Forensic Pathologist.
29 In my view, it is too late now before this Court for the applicant to be submitting that Dr Collins was not sufficiently qualified to express his view and to rely, as the applicant does, on the comments of Menzies J in Commissioner for Government Transport v Adamcik (1961) 106 CLR 292 at 302:
It would be going too far to say that any legally qualified medical practitioner is to be regarded as sufficiently qualified as an expert to express an opinion upon any matter of medical science…
30 It was further contended by the applicant that the Tondel article was contradicted by subsequent papers, not by Tondel himself, but apparently by his "supervisors and senior staff", according to Professor Peach. It was also contended that Dr Collins, in any event, only raised the "possibility" of the relevant causal connection, which was not sufficient to give rise to a reasonable hypothesis. The respondent pointed out that in response to Professor Peach, Dr Collins stated that:
Whilst I agree with Prof. Peach's view that the proposed relationship between benzene exposure and the subsequent development of myelofibrosis is based on epidemiological studies and individual case reports, such a correlation does not necessarily exclude a definitive causal connection.
31 As I have indicated, the Tondel article was merely an example of one reference material relied upon by Dr Collins. I do, however, accept that the Tondel article could not assist directly on the temporal issues as it concerned a case study about one man who had been exposed to benzene for 17 years as a petrol station attendant and who contracted myelofibrosis 13 years after that exposure.
32 However, Dr Collins expressed himself, knowing of the temporal issues in this case, more definitively than the applicant submitted. Dr Collins spoke of a "real possibility", not just a "possibility" or "mere possibility", that the veteran's death was relevantly connected to his exposure to benzene. Dr Collins' above response to Professor Peach does not detract from the opinion of Dr Collins, which he did not recant, in favour of the hypothesis proposed by the respondent, being cognisant of the temporal issues.
33 In any event, this was not the only material before the Tribunal that supported the hypothesis connecting the veteran's death with his war service, although Dr Collins' evidence was the only material before the Tribunal to address the temporal issues in the way I have indicated above.
34 The other expert called by the respondent was Dr Parkin. Dr Parkin provided a letter to the respondent dated 24 April 2003, which letter was tendered in evidence before the Tribunal. Dr Parkin was a haematologist at Heidelberg Repatriation Hospital and he identified four reports that linked benzene with myelofibrosis. Dr Parkin concluded that there was support for the hypothesis that benzene exposure contributed to the veteran developing myelofibrosis. The Tribunal does not seem to expressly take Dr Parkin's evidence into account, but that was material before the Tribunal.
35 In addition there was the survey material from Sweden referred to in the Tondel article, and the United Kingdom survey referred to (although also discounted) by Professor Peach, and the bundle of documents produced by the respondent which were specifically relied upon by the Tribunal. Even accepting the criticisms of the applicant in respect of the content of the material, it does nevertheless show that the hypothesis (putting aside temporal issues) was not contrary to known scientific facts, nor was so obviously fanciful, impossible, incredible or untenable, or too remote or too tenuous: see Bushell v Repatriation Commission (1992) 175 CLR 408 at 414 and East 16 FCR at 533.
36 In addition to the concession regarding the veteran's exposure to benzene, the Tribunal also referred to other decisions of the Tribunal (on which no objection was taken) where it seemed clear that access to petroleum was readily available and its usage was probably without protective clothing or breathing apparatus: see Whitworth v Repatriation Commission [2002] AATA 861; Prestegar v Repatriation Commission (unreported, Northrop J, 14 February 1997). All this material was available to the Tribunal to support the hypothesis.
37 There was also the study in the United Kingdom of 24,500 male employees in oil distribution centres of three petroleum companies in the UK between 1950 and 1975 (Rushton and Alderson, 'Epidemiological survey of Oil Distributions Centres in Britain' (1983)), which was referred to by Professor Peach. The Tribunal referred to this study by reference to three "petroleum refineries" but I do not think anything turns upon this incorrect reference to petroleum refineries instead oil distribution centres. It was not a mistake which necessarily gives rise to an error of law and does not in my view impact upon the reliance placed by the Tribunal upon the study. This study concluded that having regard to the instance of myelofibrosis in the UK, it was expected that there would be 3 deaths within the total number surveyed, but in fact there were 5 deaths. Professor Peach, whilst acknowledging that the greater number of deaths than expected would not have been "a chance finding", said that the study did not conclude an association between myelofibrosis and benzene. In fact, Professor Peach said that there had been studies conducted within the Australian petroleum industry which had concluded that there was no association between myelofibrosis and benzene and where there had been a measure of the extent of benzene exposure. Nevertheless, the Tribunal was entitled to attribute less weight to Professor Peach's view, and rely upon the study itself (which it did).
38 Finally, there was the bundle of documents produced by the respondent. Putting aside the circumstances of reliance by the Tribunal upon those documents (to which I will return) that material does contain some general references to the connection between benzene and the contraction of myelofibrosis, although again not in respect of the temporal issues.
39 Against this material before the Tribunal, the Tribunal heard the very strong views of Professors Fox and Peach concerning the connection between benzene and myelofibrosis. Professor Peach, in particular, did not agree with Dr Collins and criticised his conclusions. However, the Tribunal did not find the evidence of Professors Fox and Peach to be of such a "superior reliability" that there was not sufficient ground to determine the death was war-caused. Both were subject to cross-examination, and one adverse comment was made implicitly of Professor Peach by the Tribunal in the Tribunal stating that Professor Fox was far less rigid than Professor Peach in expressing his opinions.
40 In any event, it was not for the Tribunal to necessarily determine opposing views, just have regard to them in examining the validity of the reasoning which supports the hypothesis: see Bushell 195 CLR at 413-416. This, in my view, was the task the Tribunal undertook.
41 I mention one further matter for completeness. The respondent seemed to suggest that assistance could be obtained by s 119 of the VE Act.
42 No reliance can be placed upon s 119 of the VE Act to fill in gaps where there is insufficient evidence to assist the respondent's case: see Repatriation Commission v Bey (1997) 79 FCR 364 at 373-374 and Mason v Repatriation Commission [2000] FCA 1409. However, in my view there were no relevant gaps in the material before the Tribunal, and for the reasons I have indicated, the evidence before the Tribunal supported the Tribunal's conclusions.