Case: East v Repatriation Commission (1987) 16 FCR 517
Outcome: cited
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. 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] HCA 47 ; (1992) 175 CLR 408 at 414 and East 16 FCR at 533. 57 I cannot accept that submission. After considering the evidence, particularly of Professors Fox and Peach, the Tribunal stated: 95. As may be seen from the foregoing, a hypothesis may be reasonable despite the fact that it might be unproved, may have little support within the medical profession and may be dependent upon assumption. I cannot find on the material read and heard in these proceedings, that the raised facts are unreliable. Nor can I find that the evidence of Professors Fox and Peach is of such a superior reliability that there is no sufficient ground to determine that death in the present application was war-caused. At the conclusion of the evidence but before the conclusion of the hearing, Mr De Marchi produced a bundle of extracts from internet web sites, without specific attention or submission being directed to any of them. An analysis of those sites indicates that there is some support within the profession for an association between benzene and myelofibrosis refer www.merck.com/mmhe/sec14 and www.caremark.com/wps/portal. Additionally, one of the documents forming part of the " web " exhibits the copy of which is so poor that the web address cannot be identified refers to an increased incidence of myelofibrosis in the case of firemen who have been exposed to benzene. Regard for this material may appear unorthodox however it does highlight that contrary to the opinion of Professor Peach, in 'world medical literature' there does exist a body of literature raising a connection between benzene and myelofibrosis. 96. I readily acknowledge that those documents were not the subject of examination by the respondent, nor were they put to Professors Fox or Peach. However, the opinions expressed in those documents found at web sites of reputable medical organisations, do indicate that the hypothesis is reasonable because the connection between benzene and myelofibrosis is more than a possibility. Veterans and their widows need not establish a hypothesis as reasonable by a "causal connection" (refer Professor Peach) or a "definitive causal connection" (refer evidence of Dr Byron Collins). The finding of the reasonableness of the hypothesis does not depend on a resolution of or choice between competing medical theories. The contents of the report of Dr Byron Collins, the survey material from Sweden referred to in the report of Tondel (including his own survey), the United Kingdom survey referred to by Professor Peach and the information found from the internet sources as tendered does point to material raising a reasonable hypothesis connecting the operational service of the deceased, his exposure to benzene by petroleum products and myelofibrosis. The hypothesis is not "obviously fanciful, impossible, incredible, or not tenable or too remote or too tenuous" (refer East v Repatriation Commission (1987) 74 ALR 518 at 533). 58 An analysis of the Tribunal's reasons show, in my view, the bundle of documents was relied upon in at least two respects. One was to impact particularly upon the acceptance of the evidence given by Professor Peach. The other was to show the connection between benzene and myelofibrosis was "more than a possibility", which was a critical issue. 59 It may be said that in view of Dr Collins' evidence and the other material referred to by the Tribunal supporting the relevant connection, the acceptance or otherwise of Professor Peach's evidence has immaterial. However, it does seem to me that the Tribunal did look into the relative strengths of the expert evidence, and could not find the evidence of either Professors Fox or Peach of such a "superior reliability" to persuade it that there was no sufficient ground to determine that the death of the veteran was war-caused. The bundle of documents was used by the Tribunal to highlight a view which was contrary to Professor Peach's in relation to the existence of world medical literature, and impacted upon the Tribunal's assessment of Professor Peach adversely to the applicant.