�
VeRBosity
Journal of the Veterans' Review Board
�Decisions of the
Federal Court of Australia
�
Carcinoma of oesophagus - exposure to DDT
Wheeldon v Repatriation Commission
Whitlam J
�20 August 1998
[Full Text]
�
Mrs Wheeldon appealed to the Federal Court against a decision that the death of her late husband was not war-caused. Mr Wheeldon served in the Australian Army in New Guinea during World War 2. He died in 1994 as a result of carcinoma of the oesophagus and it was claimed that his condition was caused by extensive use of DDT during his service.
Mrs Wheeldon submitted reports to the Administrative Appeals Tribunal from several medical specialists. Dr�Grygiel, an oncologist, said that "it is reasonable to assume that there are some sections of the population ... that needed only the exposure to DDT to go on to develop oesophageal cancer." Dr McCullagh, medical researcher, said: "The hypothesis that I believe to be applicable to this case is that repetitive heavy exposure to the insecticide DDT during the course of Mr Wheeldon's service constituted a risk factor for the subsequent development of carcinoma of the oesophagus." He postulated that "an epidemiological study to test for such an association would ... be now quite reasonable."
Professor Levi, an oncologist, pointed out that Mr Wheeldon had an adenocarcinoma and that there was no experimental, epidemiological or clinical evidence to support an association between DDT exposure and the development of adenocarcinoma of the oesophagus. The Tribunal affirmed the decision that the veteran's cancer was not war-caused.
Counsel for Mrs Wheeldon submitted to the Court that the Tribunal had incorrectly applied the "reasonable hypothesis" provision in subsection 120(3) of the VE Act. It was submitted that Dr McCullagh had put forward a hypothesis and gave his reasons for it and the fact that Professor Levi did not accept it because studies had not been done did not mean that the hypothesis was wrong. The Tribunal was looking for proof whereas it should have been looking to see if a reasonable hypothesis had been established. Counsel submitted that a hypothesis is necessarily an untested theory and that, once effectively tested, it becomes either a theory or an unsupported (and perhaps unreasonable) hypothesis.
�
Court's conclusions
Whitlam J said that these submissions had to be rejected in the light of the recent decision of the Full Court in Repatriation Commission v Bey (1997) 149 ALR 721, where Northrop, Sundberg, Marshall and Merkel JJ said (at 730):
"While a hypothesis may be no more than a possibility or supposition, in order for a hypothesis to be reasonable, it must, ... be pointed to or supported, and not merely left open as a possibility, by the material before the decision-maker.
...
"A 'reasonable hypothesis' involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities."
Whitlam J concluded:
"Although Dr McCullagh used the term 'hypothesis', it is quite plain that neither he nor Dr Grygiel went further than to say that the suggested cause of carcinoma of the oesophagus was a possibility. In my opinion, the Tribunal was entitled to conclude that in those circumstances the material did not raise a reasonable hypothesis connecting Mr Wheeldon's disease with his war service."
�
Formal decision
The Court dismissed the appeal.