Re Betty Mary Willey and Repatriation Commission [1989] AATA 98 (21 April 1989)

ADMINISTRATIVE APPEALS TRIBUNAL

Re: BETTY MARY WILLEY
And: REPATRIATION COMMISSION
No. V87/59
AAT No. 5039
Veterans' Affairs - Practice and Procedure

COURT

ADMINISTRATIVE APPEALS TRIBUNAL
VETERANS' APPEALS DIVISION
Mrs J.R. Dwyer(1) (Senior Member), A. Argent(1) (Member) and Commodore B.G. Gibbs(1) (Member)

CATCHWORDS

Veterans' Affairs - whether death of veteran war-caused - whether reasonable hypothesis linking the development of brain tumour - astrocytoma grade 3, with head injury sustained during war service 42 years earlier - whether it is a reasonable hypothesis that exposure to smoking, lead in drinking water or N-nitrosamides in tinned meat played a role in development of tumour

Practice and Procedure - Tribunal not satisfied with adequacy of medical evidence - Tribunal requested a report from a further medical expert.

Veterans' Entitlements Act 1986 ss.8(1), 13, 120(1) and (3)

Administrative Appeals Tribunal Act 1975

East v Repatriation Commission [1987] FCA 242; (1987) 74 ALR 518

Re Repatriation Commission and Johnston (1987) 13 ALD 124

Webb v Repatriation Commission (1988) 74 ALR 696

Gilbert v Repatriation Commission Decision No 4811, delivered 27 February 1989

Adamou v Director-General of Social Security (1985) 7 ALN 203

Commonwealth of Australia v Scott (1978) 1 CCD 119

HEARING

MELBOURNE
21:4:1989

ORDER

The decision under review will be affirmed.

DECISION

A. Background
This is an application to review a determination of the Repatriation Commission made 7 January 1986 refusing Mrs Willey's application for a pension under the Veterans' Entitlements Act 1986 ("the Act") in respect of the death of her husband, Kevin John Willey, on the ground that his death, which was caused by cerebral tumour, was not war-caused.

2. The Tribunal had before it the documents (the "T documents") lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (the "AAT Act") together with further exhibits tendered during the hearing. Mr J Philbrick of Counsel appeared for Mrs Willey. Mr A Smith a departmental advocate appeared on behalf of the Repatriation Commission.
B. The Law

3. Section 13 of the Act provides that where the death of a veteran was war-caused the Commonwealth is liable to pay pensions to dependants of the veteran. Section 8(1) sets out the circumstances in which a death "shall be taken to have been war-caused". So far as relevant it reads as follows:
a) .......... .......... ............

b) the death of the veteran arose out of, or was
attributable to, any eligible war service rendered
by the veteran;
c) .......... .......... ............
d) in the opinion of the Commission, the death of the
veteran was due to ... a disease that would not
have been contracted, but for his or her having
rendered eligible war service or but for changes in
the veteran's environment consequent upon his or
her having rendered eligible war service; or
e) .......... .......... .............

4. The Act provides for different standards of proof to be applied depending on whether the veteran rendered operational service or eligible service as defined in the Act. It was not contested that in this matter the veteran rendered operational service. In such a case the standard of proof is that provided for by s.120(1) and s.120(3) of the Act. They read as follows:

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.
............ ....................
120(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.

5. The application of the "reasonable hypothesis" test in s.120(3) of the Act was considered by the Full Court of the Federal Court in East v Repatriation Commission [1987] FCA 242; (1987) 74 ALR 518 ("East's Case"). In a joint judgement Jenkinson, Neaves and Wilcox JJ considered the history of the legislation dealing with claims by veterans and the amendments to the provision as to standard of proof. The Court referred to a decision of the Veterans' Review Board of Stacey (Nos.V83/0396, V84/0821 and V28/072) which it said "felicitously explained" the meaning of the term "reasonable hypothesis". It quoted with approval from that decision the following passage at p 533:

"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."

The Federal Court stated that it agreed with the analysis in Stacey and concluded, at p 534:

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

6. The Court in East's Case then referred to s.120(6) of the Act which specifically provides that "no party bears any onus of proving any matter that is or might be, relevant to the determination" of a claim under the Act and said at p 535:

"The practical situation remains that it will
often be in the interests of a party to
proceedings before the tribunal to adduce
particular evidence; the reason being that,
in the absence of that evidence, the tribunal
will not be free to make the decision sought
by that party."

7. Some further explanation of the concept of "reasonable hypothesis" was provided by the Tribunal in Re Repatriation Commission and Johnston (1987) 13 ALD 124 (Re Johnston). The Tribunal applying East's Case stated that three types of hypotheses should be distinguished. They were described at p 126 as follows:

" (a) those which are fanciful or unreal and
which cannot therefore satisfy the
statutory criteria;
(b) those raising a possibility, not fanciful
or unreal, not pointed to by the facts -
which also cannot satisfy the statutory
criteria; and
(c) those which are pointed to by the facts
and thus are within the statutory
criteria."

8. The Tribunal in Re Johnston rejected the submission that the veteran's cancer was war-caused. It concluded that each of the hypotheses relied on by Mr Johnston as showing a connection between his cancer and his war service raised a possibility not fanciful or unreal, consistent with the known facts but did no more than that. They were not hypotheses pointed to by the facts and were accordingly not "reasonable hypotheses" as required by the law as explained in East's Case.

9. Mr Philbrick in submissions he made to the Tribunal on 11 July 1988 relied on passages from the judgements of Davies J and Foster J in Webb v Repatriation Commission (1988) 78 ALR 696 ("Webb's Case"), as stating that s.120(1) of the Act requires that if any fact is relied on by the applicant and the respondent disputes that fact, the respondent has to call evidence to dispell that fact rather than the applicant having to call evidence to establish it. On 26 August 1988 the Tribunal in Re Sharkey and Repatriation Commission (1989) 15 ALD 782 delivered a decision in which it rejected that interpretation of the passages relied on in Webb's case and suggested that Webb's Case must be understood to be consistent with East's Case.

10. Before this hearing concluded the decision in Gilbert v Repatriation Commission ("Gilbert's Case") an unreported decision No 4811 of the Federal Court was delivered on 27 February 1989. It also rejected the suggestion that Webb's Case should be read as inconsistent with East's Case. Hill J said at pp 14-16 on the role of s.120(1) of the Act:

"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.
...............................
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."

C. The Evidence

11. Having considered the interpretation of the concept of a reasonable hypothesis we turn to the evidence. Mr Willey served in the Australian Army from 11 October 1941 to 3 April 1946. His service included service in the South Pacific in 1945. The event during service on which emphasis was placed during the first day of hearing was an incident on 9 January 1944 when he was stationed at Townsville. The records reveal that he dived into a swimming pool mistaking its depth and struck his head. He was admitted to the camp hospital for 5 days from 9-14 January 1944.

12. The T documents show (p 19) that after the incident Mr Willey was complaining of pain down both shoulders and in the neck when flexed but not with other movements. An X-ray of the cervical spine was reported as "NAD" meaning "no abnormalities detected" and on 13 January 1944 the medical note reads:

"Free Movements of neck
Pain less
DTU (Discharge to Unit)
Light duties 1 week."

His condition on discharge was recorded as "cured".

13. There were no further relevant incidents during Mr Willey's service but evidence was given by Mr Handcock who like Mr Willey served in Townsville and Bougainville, as to conditions of service in these areas at the relevant time. He said that in the islands the diet consisted of tinned meat, frequently bully-beef, which was stored in the open so that the tins were often rusty. He also said that drinking water on Bougainville was taken from the river and stored in 44 gallon drums procured from U.S. Army Air Corps surplus dumps. He said that these tanks had previously contained lead based aviation fuel. He said that in Townsville, drinking water was collected from roofs in storage tanks. He described the roofs as camouflaged with commercial type paint which he said in those days was lead based.
D. The hypotheses
The hypotheses relied on were
(a) The diving incident

14. When the case commenced the main hypothesis relied on was that the diving incident in 1944 either aggravated a pre-existing tumour or damaged brain cells so as to predispose them to development of a tumour in the future.
(b) Smoking

15. There was also a suggestion that Mr Willey's smoking during service could be related to his brain tumour.
(c) Exposure to N-nitrosamides
(d) Exposure to high levels of lead

16. Hypotheses (c) and (d) rely on exposure to these substances during service in Townsville and Bougainville and were raised by Dr Minty in a report prepared during one of the adjournments in the matter.
(a) The diving incident hypothesis

17. The diving incident occurred in 1944. Mr Willey's tumour was not diagnosed until 1985. There was therefore some difficulty in showing that the diving incident could have caused the tumour or aggravated a pre-existing tumour unless it could be established that the tumour was a slow growing one, or had a very long latent period or that it was present, but undiagnosed, many years before 1985.

18. Mr Willey's tumour was described in the biopsy report (T47) as an "astrocytoma Grade 3". Mr Handcock, the Benalla Legacy representative who appeared for Mrs Willey at the VRB hearing produced a number of passages from medical text books which supported the argument that an astrocytoma can be slow growing. They included an extract from R G Petersdorf et al (eds) 'Harrison's Principles of Internal Medicine' 10th edn, McGraw Hill Book Co, New York, p 1983 which read as follows:

"Astrocytoma. The astrocytoma may occur
anywhere in the brain or spinal cord...... It
is a slowly growing tumour of infiltrative
character with a tendency to form large
cavities or pseudocysts.
.......................
The majority of cerebral astrosytomas undergo
malignant degeneration and present as mixed
astrocytomas and glioblastomas.
The astrocytoma may cause trivial symptoms for
a long period of time. Seizures, headaches,
and bizarre mental symptoms may be present for
several years, in a few instances more than
10, before the diagnosis is made.
The average survival period after the first
symptom is 67 months in cerebral growths and
89 months in cerebellar ones. The cystic
astrocytoma of the cerebellum is particularly
benign, and some patients are alive and well
as long as 30 years after part of the cyst was
excised. In such cases, of course, accuracy
of the original diagnosis of neoplasm, is
always open to question......."

19. Mr Handcock also produced at the VRB hearing an article by R Fishman, 'Intracranial tumours and states causing increased intracranial pressure, in Paul B Beeson and Walsh McDermott, Text Book of Medicine' 13th edn, W B Saunders Co, Philadelphia, 1971 p 96. It stated as follows:

"Astrocytoma: Astrocytomas are composed of
astrocytes that infiltrate the brain and are
often associated with cysts of varying size.
They are generally slow-growing and may
occasionally run a course of many years or
even decades. They may infiltrate normal
brain widely but with relatively little effect
on brain function early in the illness.
Complete surgical excision of cystic
astrocytomas of the cerebellum may be
possible, particularly in children, but in
most other instances their marked invasiveness
of brain prevents complete removal.
Astrocytomas may undergo malignant change, and
a highly malignant glioblastoma may develop
within a relatively benign astrocytoma."

20. For the applicant, emphasis was also placed on a passage from R A Willis, Pathology of tumours 4th edn, Butterworths, London 1968 p 87. It offers some support for the view that a long period between the diving incident and the development of the tumour does not necessarily rule out any causal connection. It reads:

"It is important to emphasise here the great
length of the latent period often intervening
between the application of the carcinogenic
stimulus and the eventual appearance of the
tumour. This makes it useless to look for the
causes of human tumours in the occupations and
habits of affected persons during the parts of
their lives immediately preceding the
appearance of their tumours. The tumour of
today is often the consequence of stimuli
applied 10, 20 or 40 years ago."

21. The medical reports contained in the T documents give the impression that the symptoms of the cerebral tumour were only noticed during the eight months or so before its diagnosis. Dr Narayan of the Repatriation General Hospital ("RGH") wrote to Dr Trinker at Peter MacCallum Hospital on 4 April 1985:

"History of Present Illness
He started having poor memory for the last
eight months. About three of four months ago
his wife and daughter told him that he was a
nuisance on the road while driving. Gradually
he started having difficulty in walking. His
walk would progressively lead him towards the
left. About four weeks ago he could not walk
at all due to problem with balancing. For the
last two weeks he has had occipital headaches
and started to have occasional vomiting. He
has lost about 10 kg in the last 2 months. He
has been investigated at RGH and a CT Scan on
the head done on 26.3.85 revealed a large
right cerebral tumour centred on the posterior
lateral ventricle consistent with glioma or
secondary metastases."

22. A written submission by Mr Handcock to the VRB set out details of earlier symptoms which he claimed could have been early pointers to the tumour. These consisted of nausea and sore eyes in 1946 and pains in the chest and hands associated with nausea and dizziness in 1968. In 1974 there were severe headaches and fits of irritability as well as problems with driving due to fuzzy eyes, headaches, lack of concentration and a tendency to wander off the road or onto the wrongside. These problems led to Mr Willey's retirement from employment on 31 December 1974 at age 52. There were also later complaints of vertigo and visual disturbances of a migrainous nature and in 1985 an episode of dysarthria with incapacity to speak coherently.

23. The VRB had before it a report from Dr Cannon, Mr Willey's general practitioner of 17 October 1986 in which he expressed the opinion that the various symptoms over the years were accounted for by the other diagnosed conditions of cervical spondylosis, coronary artery disease and carotid artery disease and bouts of emotional lability. Dr Cannon did however concede that the symptoms referred to by Mr Handcock in his submission are found in cerebral tumours. He therefore concluded:

"The unlikely possibility therefore exists that
some of Mr. Willey's symptoms over the years
may have been related to the coincidental
growth of a cerebral tumour masked by the
predominating features of the more readily
recognizable problems."

24. On this evidence the VRB concluded that it was not "inherently incredible or tenuous" that Mr Willey may not have suffered from sudden onset of a malignant brain tumour but may instead "have been affected for some many years by a slow growing and relatively benign astrocytoma which turned malignant in the end and caused a quite rapid death". The VRB however was satisfied that Mr Willey's death was not war-caused because it said it had "no medical evidence...whatsoever that would support the hypothesis....that a blow on the head sustained in ....1944 would initiate an astrocytoma which proved to be a lethal cause of death in 1985."

25. Sir Edward Hughes who gave evidence for the applicant provided a report dated 1 August 1987 which attempted to provide the medical evidence which was lacking before the VRB.
He wrote:

"I believe a blow on the head or anywhere for
that matter can cause a cancer at that site.
But it is more likely to aggravate a
pre-existing tumour."

He concluded his report:

"I believe that this patient sustained an
injury to his intra-cranial structures in 1944
and this finally led to a tumour which proved
fatal."

26. When Sir Edward Hughes was asked to explain in evidence how the swimming pool incident could lead to the development of a tumour of the type diagnosed in Mr Willey he said:

"Well, it may displace the cells in that
particular area of the brain and dislocate
them and whether the gap that was left by
those cells you get new cells forming and it
is when new cells form they get out of hand
sometimes and become an ever increasing
tumour.
Yes?---And the fact that it took 40 years to
develop into a tumour which was finally
recognized is in keeping with the behaviour of
some brain tumours.
And would that be the case also if there was a
very small tumour which was adversely effected
in the swimming pool incident?---Exactly the
same thing."

27. Sir Edward Hughes produced a copy of the Victorian Cancer Registry 1982 statistical report published by the Anti Cancer Council of Victoria which in regard to brain cancer showed trauma to be under suspicion as a risk factor for meningioma. It was not contested that Mr Willey's tumour was not a meningioma, which affects primarily the covering of the brain, but a glioma which is a tumour inside the brain. Sir Edward also produced the Directory of Ongoing Cancer Research for July 1987 which showed that research is presently being undertaken to investigate head trauma amongst other factors, such as exposure to chemicals, as a possible cause of glioma.

28. The medical evidence called by the respondent was that of Professor Van Den Brenk. He said that Mr Willey's Grade 3 astrocytoma is a cerebral tumour and the term Grade 3 means that it is of a high grade of malignancy. He said it is rapidly growing. He said that type of tumour mostly occurs after 50 years of age. This is confirmed in the publication of the Anti Cancer Council produced by Sir Edward Hughes.

29. Professor Van Den Brenk was asked whether tumours change in nature. He said:

"No, I do not believe they do because tumours
in general once they have mutated and
transformed, their form from their genetic
constitution determines their type of growth
and over the period of time as they are
progressing and enlarging they tend to
maintain that same pattern of growth. In fact
they are - modern theory is that tumors are
monoclono in origin, that they arise from one
cell that is mutated and that its genetic
characteristics are determined at that stage
and that they grow at a predetermined rate
from the time of their origin." (Slight
corrections have been made to the transcript
record of this passage).

Professor Van Den Brenk said he did not think it possible that there could have been an astrocytoma Grade 3 present in Mr Willey's brain since the 1940's. He said the brain is a closed cavity and therefore anything that expands on the brain causes symptoms very rapidly.

30. Professor Van Den Brenk also did not agree that there is any evidence to suggest that a blow to the head could initiate a tumour. He did agree that if there already is a bone tumour present, an injury such as a blow to the bone can draw attention to the previously painless tumour. He also stated that such an injury can even provide an impetus to growth of a tumour through causing additional nutrient to come to that site although his evidence on this matter (at p 81 and 82 of transcript) seemed to the Tribunal to be reluctantly given and somewhat evasive.

31. Professor Van Den Brenk was referred to the passages quoted in paragraphs 16 to 18 from Willis and Harrison. He said he did not read those passages as referring to Grade 3 tumours but rather to Grade 1 type astrocytomas particularly of the cystic type that occur in children. He said he would not expect there to be 10 years between the onset of symptoms of a Grade 3 astrocytoma and death.

32. Professor Van Den Brenk was asked about the symptoms referred to by Mr Handcock in his submission to the VRB, which were further described in evidence by Mrs Willey and in a statutory declaration made by her daughter Mrs Benyon who is a Registered Nursing Sister. Mrs Willey in her evidence said that her husband had problems with his neck ever since their marriage in 1950, but they had become worse with time. She said as long as she could remember he complained of severe headaches and dizziness. She said he was in hospital for traction so frequently that eventually he was given his own traction unit to have at home. These problems had been attributed to his cervical spondylosis which was accepted as war-caused within the meaning of that term in the Act. Mrs Willey said that over the ten years before his death, her husband also developed trouble with his eyes. He had blurred vision and fogginess. Mrs Willey said that his personality also gradually changed in the late 1960's and early 70s and he became irritable and "just not the same person".

33. Mrs Willey described an incident in 1972 when Mr Willey disappeared overnight and when he returned had no idea where he had been. She said that in the early 1970's he also had other lapses of memory and he had problems with loss of concentration when driving on long trips which would cause him to veer over to the wrong side of the road. She said that when she and her husband told the doctor about these problems they were "put down" to his heart condition or to the medication he was on for the heart condition. She described her husband as often emotionally upset or tense and said the doctor would frequently say he needed a holiday.

34. Mrs Benyon in her statutory declaration described similar problems, although she did recall that following his retirement in 1974, because of tension and irritability which was attributed to his neck problems, her father's health remained relatively stable until symptoms of coronary insufficiency started to arise. She said his neck symptoms did not seem to be deteriorating and headaches were not especially prevalent but his personality underwent subtle changes and he had problems with blurred vision, dizziness and staggering gait. She said he also had violent episodes of frustration and mood changes which were completely out of character. In retrospect she considered that the diagnosis of cerebral tumour explained a lot of previously strange symptoms and episodes.

35. Professor Van Den Brenk said he thought the symptoms in 1975 would not have been related to the astrocytoma, but to Mr Willey's cardiac and respiratory problems. He said the symptoms of an astrocytoma would be headache, giddiness, loss of balance, abnormal behaviour, depression, irritability, focal neurological signs but they would have a much shorter clinical history than the 10 years relied on by the applicant. He also pointed out that many of the same symptoms are also consistent with cervical spondylosis. Professor Van Den Brenk said that loss of balance and dysarthria and amnesia would be symptoms of Mr Willey's type of tumour, but once these symptoms had developed they would progress because the tumour progressively destroys the brain. Thus if Mr Willey got better after periods of loss of balance or amnesia, he said they would be unlikely to be due to the tumour. Professor Van Den Brenk also said he did not think a person with a Grade 3 astrocytoma would suffer with such symptoms for 11 years. He thought that even if the tumour was in the borderline area between a Grade 2 and a Grade 3, one would not expect its symptoms to be noticeable for 11 years.

36. Professor Van Den Brenk was asked about the connection between menigioma and trauma, which is referred to in the Anti Cancer Council Registry and also in Brain's Diseases of the Nervous System 9th edn, by Sir John N Walton, Oxford Publications, London, 1985. He said that he did not personally believe in the connection, but he acknowledged that it was referred to in the text books.

37. When the hearing concluded at the end of the first day the Tribunal adopted the unusual step of informing the parties that it would like to hear evidence from a neurologist or neurosurgeon. The Tribunal did not consider that it had sufficient evidence to allow it to make a properly informed decision as to whether it was a reasonable hypothesis that the symptoms complained of by Mr Willey in 1974 and the late 1970s could indicate the existence of an astrocytoma at that time or whether it is a reasonable hypothesis that an astrocytoma could have been caused or aggravated by the swimming pool incident in 1944. Although the Tribunal only rarely adopts such a course it is clear that it does have power to call its own witnesses. (See s.33(1)(c) of the AAT Act and Adamou v Director-General of Social Security (1985) 7 ALN 203 and Commonwealth v Scott (1978) 1 CCD 119.) The Tribunal found the evidence of Sir Edward Hughes and Professor Van Den Brenk to be so far apart that there was no way for it to form any view as to what was a reasonable hypothesis from a medical point of view unless it simply accepted that any hypothesis advanced by an eminent medical practitioner, even if not in his field of specialty, had to be reasonable.

38. We had some trouble in deciding what weight to give to the evidence of Sir Edward Hughes in view of the fact that his sphere of practice is largely confined to gastro-intestinal surgery. His experience with cancer relates mainly to stomach cancer and cancer of the large bowel although he has also operated on a number of patients for breast cancer. He acknowledged that he is not a neurosurgeon and therefore does not have full access to literature about brain tumours. He was not aware whether the description of Mr Willey's tumour as astrocytoma Grade 3 meant that it was very malignant or even whether a Grade 3 tumour is more malignant than a Grade 1. When he was asked to comment on some of the passages referred to in the medical text book, he said that he did not believe that astrocytoma and glioma are the same thing, but added that if they are the same, there are certainly many slow-growing tumours amongst them. He said that all tumours seem to accelerate in growth rate towards the end. He also said he would not expect the diving incident to interfere with the growth rate of an astrocytoma if one existed prior to the diving incident. We had difficulty reconciling that statement with the sentence in his report of 1 August 1987 which reads:

"I believe a blow on the head or anywhere for
that matter can cause a cancer at that site.
But it is more likely to aggravate a
pre-existing tumour."

39. Professor Van Den Brenk on the other hand appeared to be familiar with current research and learning about cancer in general and brain tumours in particular, but his answers to some questions gave the impression that he was determined not to concede a single point in the applicant's favour. He was asked to answer questions as to the consistency of Mr Willey's symptoms with those of brain tumour, disregarding for the moment the question of the length of time those symptoms were experienced. He was reluctant to do so. Although he said (at pages 81 and 82) that a knock can precipitate growth of a tumour by providing nutritional circumstances that are well suited towards growth, he would not concede any way in which that precipitation of growth could precipitate a fatal outcome from the tumour. Some explanation of his approach was given by his answer stating that to him a hypothesis is not reasonable, unless it is supported by factual evidence so as to be a matter of probability. This of course is not the legal meaning of a reasonable hypothesis and the different understanding of the term could have led to some of the difficulties.

40. Mr Smith helpfully agreed that the Repatriation Commission would obtain a report from a neurologist or neurosurgeon chosen by the Tribunal and the hearing was adjourned until that report was obtained. The parties agreed to the report being obtained from Mr John Bryant Curtis who was previously an Honorary Neurosurgeon at the Royal Melbourne Hospital and Prince Henry's Hospital. A letter in a form approved of by the parties' representatives was sent to him by the District Registrar of the Tribunal together with the T documents, exhibits and transcript.

41. After Mr Bryant Curtis' report was received the hearing resumed and the report and other reports which had been obtained by the parties during the adjournment were taken into evidence. Mr Bryant Curtis in his report dated 28 January 1988 wrote that he had read the Army records, medical reports and transcript of medical evidence from the first day of hearing. After summarising the medical evidence he wrote:

"The astrocytoma Grade III is very malignant
and rapid growing with fatal outcome.
Characteristically it has a short history such
as Mr. Willey gave. I have never seen a
malignant change in a previously benign type
astrocytoma as a terminal event occurring in a
tumour of long standing."

42. Mr Bryant Curtis wrote that there is no evidence to suggest that trauma plays any causative role in the formation of glioma. He pointed out that meningiomas are a different sort of tumour but said that the most recent (9th) edition of Brain's Diseases of the Nervous System has now omitted to mention which was in the 8th edition, of trauma playing a role in the development of even meningiomas. The current edition of Brain therefore supports the opinion given by Professor Van Den Brenk as his personal opinion when giving his evidence.

43. Mr Bryant Curtis acknowledged Sir Edward Hughes' expertise in bowel disease but said:

"I do not agree with his transference of such
knowledge to speculation about gliomata of the
brain. I consider his such inferences are
scientifically untenable."

His opinion was that there was no aspect of the incident in 1944 which could play a causative role in the development of a Grade 3 astrocytoma 40 years later. He based this opinion on:

(i) the lack of evidence of trauma playing any role in
causation of gliomata;
(ii) the fact that the Army notes with regard to the incident
do not give any evidence of brain injury;
(iii) the fact that he considered that a considerable part of
the symptoms described by Mrs Willey and Mrs Benyon are
adequately explained by Mr Willey's progressive
degenerative vascular disease and psychological factors;
and
(iv) the short history of confusion and localising
neurological signs of a few weeks before diagnosis which
he said is characteristic of the short progressive
nature of Grade 3 astrocytoma.

44. Although Mr Bryant Curtis' report was obtained in January 1988 and made available to the parties shortly after receipt, neither party arranged for his attendance when the matter was relisted for hearing on 11 July 1988 or on 17 March 1989. On 17 March 1989 Mr Philbrick sought a further adjournment to allow his instructing solicitor to arrange for Mr Bryant Curtis to attend for cross-examination. The Tribunal expressed itself as very reluctant to grant a further adjournment of a case the hearing of which had commenced almost eighteen months earlier. Mr Philbrick after further discussion with his client withdrew the application for an adjournment.

45. Mr Philbrick at the short resumed hearing on 11 July 1988 tendered an article by F Hochberg, P Tonicolo and P Cole "Head Trauma And Seizures As Risk Factors Of Glioblastoma", Neurology (1984) 34, 1511-4. The article defined both "severe" and "mild" head trauma. On the definitions Mr Willey's injury in 1944 was certainly not "severe" but may have been "mild" if he had well described concussion or brief loss of consciousness. The medical records in the T documents do not refer to him suffering either of these conditions. The article notes that previous epidemiological studies had found little evidence of a relationship between head trauma and glioma but concludes that the data obtained by the authors in their research suggest that severe head trauma in adults is a significant risk factor for glioblastoma and that there is also an association between glioblastoma and a long history of seizures. There is no evidence that Mr Willey ever had seizures or even that he suffered from glioblastoma which the evidence establishes is a more highly malignant tumour than an astrocytoma Grade 3. In those with mild head injuries the rate ratio of glioblastoma shown in the research was only minimally increased and the authors did not claim that increase was statistically significant.

46. On the third hearing day, 17 March 1989, Mr Philbrick called Dr Minty who had provided a report dated 16 May 1988. In that report Dr Minty gave no support to the hypothesis that trauma is a cause of astrocytoma. In fact he said "the bulk of opinion is against trauma being a cause of astrocytoma". He did however give some evidence which supported the view that Mr Willey's tumour may have been slow growing.

47. We regret to have to say that we found Dr Minty's evidence on this point confusing and accordingly not helpful. He described the biopsy report of the microscopic appearance of the tumour in (T47 p 120) as consistent with slow-growth and then described some of the features mentioned as indicating an intermediate degree of malignant growth. Yet he said he would not disagree with the "tumour Grade 3" classification given by the pathologist who prepared the biopsy report. He then said a Grade 3 tumour can be very slow growing and he disagreed with the views expressed by Professor Van Den Brenk and Mr Bryant Curtis that a Grade 3 astrocytoma is a highly malignant and rapidly growing tumour. He was not explicit as to whether he was disagreeing with both terms "highly malignant" and "rapidly growing" or only with "rapidly growing".

48. It is very unsatisfactory for a lay Tribunal to be given contradictory explanations of a system of grading which is apparently very common in the field of oncology. We would have expected all the expert witnesses in the field of tumours to know and agree on the meaning of the system of grading. When the Tribunal raised this problem during final addresses a passage was found in Harrison's Principles of Internal Medicine at p 154 which confirmed that the Grades are ascending grades of malignancy from 1 to 4. It did not specifically state whether more malignant tumours are those which are more rapidly growing. After the hearing we referred to William A R Thomson; Black's Medical Dictionary 34th edn A & C Black, London, 1984, p 565. It gives the meaning of malignant in regard to tumours as follows:

"Tumours are called malignant when they grow
rapidly, tend to infiltrate surrounding
healthy tissues, and to spread to distant
parts of the body, leading eventually to
death."

We therefore have some difficulty in understanding why Dr Minty said that he did not agree that a Grade 3 tumour is highly malignant and rapidly growing.

49. Another respect in which we found Dr Minty's evidence unhelpful and even somewhat misleading was in regard to the significance to be given to a passage to which he referred in David Schottenfeld and Joseph F Fraumeni, Cancer Epidemiology and Prevention, W B Saunders & Co, Philidelphia, 1982, p 972. He wrote in his report (at p 3 of A5):

"On page 972, Figure 3 illustrates that 20
percent of astrocytoma patients are surviving
at ten years. Although survival is influenced
by treatment, it is also influenced by the
growth rate of the tumour and the survival of
20 percent of astrocytoma patients for more
than 10 years indicates that astrocytoma is a
slowly growing tumour."

50. In cross-examination Dr Minty agreed that the Table relates to astrocytomas Grades 1 - 3 and that Grade 1 are "near enough benign" and nearly all have successful surgical cures. This therefore places a very different significance on the Table than that placed in his report. It suggests, in the absence of evidence about the related frequency of Grades 1, 2 and 3, that most of the 20 per cent of astrocytoma patients who survive 10 years probably have an astrocytoma Grade 1 and therefore that very few, if any, patients with an astrocytoma Grade 3 would be alive more than 10 years after diagnosis. We accept the evidence that a tumour Grade 3 is highly malignant and rapidly growing.

51. Another unsatisfactory feature of the evidence as to the first hypothesis is that it did not clarify why Professor Van Den Brenk and Mr Bryant Curtis both say that a benign type astrocytoma does not undergo malignant change and yet the extract by Robert A Fishman specifically states that "Astrocytomas may undergo malignant change..."

52. The real difficulty facing the applicant in relying on the first hypothesis is however the same as it was before the VRB. There simply is not any evidence other than that of Sir Edward Hughes pointing to the swimming pool incident playing any sort of causative role in the development of astrocytoma. Professor Van Den Brenk, Mr Bryant Curtis and Dr Minty all state that there is no body of medical opinion suggesting that trauma is a cause of astrocytoma. We consider them all to be more expert in the field of brain cancer than Sir Edward Hughes. Their opinions are supported by the lack of reference to trauma as a suspected cause of astrocytoma in the literature to which the Tribunal was referred. One of the references which suggested that trauma may be a cause of meningioma has now been updated to omit that reference, but in any event Mr Willey did not have a meningioma. Similarly, even if the Hochberg and Cole article does establish it to be a reasonable hypothesis that severe head trauma is a significant risk factor for glioblastoma, Mr Willey had neither severe head trauma nor glioblastoma. We therefore conclude that hypothesis (a) relating to the diving incident is not pointed to by any of the facts in this matter, and is therefore not a reasonable hypothesis.
(b) Smoking

53. This hypothesis was suggested by Sir Edward Hughes and Dr Minty. However, Sir Edward Hughes in his report and in evidence stated (at p 43) that the suggestion that smoking may predispose to brain tumours "is guesswork at the moment". Although Dr Minty wrote in his report:

"Mr Willey was a heavy cigarette smoker and a
polycyclic hydrocarbon which is present in
cigarette smoke is known to produce brain
tumours."

He also wrote:

"Smoking or alcohol consumption is said to have
shown no significant association with brain
tumours."

Professor Van Den Brenk said and Mr Bryant Curtis wrote, they knew of no evidence of any connection between smoking and astrocytoma. We therefore conclude that there is no evidence on which we could find it to be a reasonable hypothesis that there was a causative link between Mr Willey's war time smoking and his astrocytoma.
(c) Exposure to N- nitrosamides

54. This hypothesis was advanced by Dr Minty on the authority of a book, Schottenfeld and Fraumeni Cancer Epidemiology and Prevention 1972. He referred in his report to the discussion of chemical carcinogenesis at p 975 of the book. Dr Minty wrote that N- nitrosamides have been found to be the most effective substance resulting in a high incidence of nervous system tumours after systemic administration in animals. He explained that this means administration by injection.

55. Dr Minty said that N- nitrosamides are "derived from the metabolism of nitrosamines" and are "potent carcingoenic agents found in tinned, canned meat". In cross-examination Dr Minty agreed "that there is no evidence, directly, that nitrosamines produce brain tumours in man, other than in certain occupations such as the rubber industry" (trans. p128). Therefore, even accepting Mr Handcock's evidence that Mr Willey and most other servicemen serving in Northern Australia and the South West Pacific area ate tinned meat including tinned bully beef, we do not consider it to be a reasonable hypothesis that by eating this tinned meat during service Mr Willey ingested nitrosamines and they produced his brain tumour. In view of the number of servicemen who ate tinned meat during war service we consider that there would have to be some epidemiological evidence of an increase in brain tumours among service men before we could accept this as a reasonable hypothesis.
(d) Exposure to high levels of lead

56. Dr Minty relied for this hypothesis on a Table in Schottenfeld and Fraumeni which in his report he described as finding that:

"two out of three children who had increased
urinary lead concentrations develop
astrocytomas two and four years later."
(Table 8 p 976)

When the Table was produced in evidence it gave very little detail as to the circumstances of the study and did not refer to 2 out of 3 children but to:

"Two case reports of children with elevated
urinary lead levels who subsequently developed
astrocytoma."

57. Dr Minty suggested that Mr Willey suffered exposure to high levels of lead in drinking water which was collected in tanks from lead painted roofs in North Queensland, and which on Bougainville was stored in 44 gallon drums which had previously been used for lead based fuels.

58. There is no evidence from which we can compare Mr Willey's exposure to lead to that of the children in the survey referred to in Schottenfeld and Fraumeni as the Table gives no detail of their exposure. Further the fact that the children developed their astrocytoma in 2 to 4 years after detection of increased urinary lead levels, leads us to expect that if Mr Willey's exposure to lead in the 1940's had any causative effect on his astrocytoma it would have developed to the point where its symptoms were sufficiently noticeable to lead to diagnosis before the 1970's or 1980's. Furthermore, before accepting this as a reasonable hypothesis, we would once again expect there to be some epidemiological evidence of a higher rate of astrocytoma in North Queensland where water was collected from roofs painted with lead based paints, or amongst ex-servicemen who served in New Guinea and Bougainville where water was stored in 44 gallon tanks which had previously been used for lead based aviation fuel. In the absence of any such evidence we do not consider it to be a reasonable hypothesis raised on the material before us that exposure to lead in drinking water played a role in the development of Mr Willey's astrocytoma.

59. We consider that the hypotheses (c) and (d) advanced by Dr Minty fall far short of being reasonable hypotheses in the light of the comments of the Federal Court in East's Case and Gilbert's Case. We suggest that parties' representatives should consider whether it is worthwhile spending time and money on advancing hypotheses which are no more than somewhat fanciful possibilities consistent with the known facts. The cases have now made it clear that a hypothesis must be pointed to by the facts or raised on the material before the Tribunal before it can be found to be a reasonable hypothesis.

60. The decision under review will be affirmed.