At the end of last month the Veterans Appeals Tribunal Decision on the Case Jean Mahoney vs. Australian Repatriation Commission was published.
The result was a win for the appellant, setting aside of the earlier Australian government decision not to grant a pension to the widow of a veteran who worked among the ruins of Hiroshima and later died from metastatic colon cancer.
I was the expert witness in this case and persuaded the Australian Tribunal (in an expert report and with oral cross examination by telephone, Brisbane to Riga) that the radiation risk model of the International Commission on Radiological Protection (ICRP) was not applicable to the kind of internal exposure to radioactive particles which her late husband, George Mahoney will have received.
I was bought into this case by Dr David Douglas who had been also retained as an expert by the widow, and with whom I have worked on another successful appeal in the past. Dr Douglas also gave evidence, and largely supported the arguments relating to internal exposures.
The particular argument I advanced is an extremely important one in internal radiological protection, one at the core of the arguments of the European Committee on Radiation Risk (ECRR), and it was opposed by an expert from the Australian National Radiological Protection Board (ARPANSA) who argued the model of the ICRP.
A trial of two risk models
So this case was, in effect, a trial of the two risk models, that of the ECRR and that of the ICRP. It was decided by the judgement in favour of the ECRR.
The appellant’s late husband, George Mahoney, was stationed in Japan between 5th March 1946 and 23rd April 1955 as a member of the British Commonwealth Occupation Forces (BCOF). He died on 7th July 1990 from metastatic colon cancer.
Mrs Mahoney applied for (and was refused) a pension on the grounds that the death was caused by her husband’s exposure to residual radiation at Hiroshima, where he worked. The original refusal basis was (like all the British Test Veteran refusals) that his dose was too low to cause cancer.
This statement was based on the ICRP radiation risk model which holds that a ‘dose’ to the organ concerned of upwards of 1000mSv is necessary to cause a 50% increased risk of colon cancer. The ICRP analysis is based on the cancer yield of the External Acute gamma radiation ‘dose’ to individuals in the famous ‘Life Span Study’ the LSS.
So (if the LSS is a true reflection of the cancer yield) the whole colon, every cell in the colon, and every cell in the body of the exposed individual will have had to receive 1,000mSv for the person the develop colon cancer.
But the problem with this approach is that cancer does not start in the ‘whole organ’. It starts in one cell, or perhaps in a small group of cells, so the dose necessary to cause the genetic damage leading to cancer has only to be large enough in one small part of the colon.
Such a dose could be easily delivered from a Uranium particle for example, inhaled and ingested from the contaminated dust in the ruins of Hiroshima. We know that there were such particles because my colleague (and ECRR scientist) Prof. Shoji Sawada measured anomalous Uranium residues from the famous ‘black rain’ in Hiroshima in 1983. This is the key point.
The approach of the Australian Commission in deciding these issues is to see if they fit within a ‘statement of principles’ (SoP). Clause 6 of the relevant SoP states that for the Pension to be awarded for malignant colon cancer:
[the applicant must have] received a cumulative equivalent dose of at least 100mSv of ionising radiation to the colorectum at least five years before the clinical onset of malignant neoplasm …
Cumulative equivalent dose is defined in Clause (9) of the SoP to mean: “The total dose of ionising radiation received by the particular organ or tissue … “.
Hold it there: ‘or tissue’
The case pivoted on these two words, “or tissue”. Of course, ECRR would be happy if this interpretation were applied, it is the key to the entire risk model issue. And the Tribunal seized on this and used it as its basis for finding for the appellant.
It agreed that the veteran could have inhaled or ingested radioactive particles from the dust in the rubble of the destroyed city and that these could have lodged in the colonic surface tissue. They refer to my oral evidence:
Dr Busby: “It’s the dose to the single cell where the tumour develops that’s important … so we are talking about tissue, we are not talking about whole organ … and of course the dose to that from a uranium particle that’s been trapped in the colonic epithelium, because it’s only the epithelium that we should be concerned about, this is on the surface of the inside of the colon, those are the cells that replicate and those are the ones that develop cancer.
“The cancer never develops on other parts of the colon, from the muscular part of the colon or the outer part of the colon. You rarely get cancers there, almost never.”
The Tribunal: “The applicant is right. The wording of factor 6(1) does not require that the whole of the colorectum be exposed to the requisite level of radiation.
“Nor does it suggest on its face that exposure of parts of the organ – especially those parts of the organ that are vulnerable to ionising radiation – is only problematic if the exposure is averaged across the whole organ, including parts that were not exposed and which might not be vulnerable to the effects of ionising radiation) and the average level exceeds the requisite level … “
And to make no mistake:
“As Dr Busby pointed out in his evidence, the risk of cancer only arises when certain cells within the colorectum are exposed to ionising radiation.
“It would be odd if the Repatriation Medical Authority intended that radiation be assessed across the whole organ including parts of the organ that were known not to be vulnerable to the development of cancer as a result of radiation exposure when vulnerable but localised areas might have been exposed to an excessive dose.”
Also on trial – Hiroshima’s ‘black rain’
The Tribunal also accepted that Hiroshima was contaminated by the ‘black rain': “Dr Busby produced a 1983 study which showed that areas to the north-west of the hypocentre of the blast experienced ‘black rain’ shortly after the bomb was detonated.
“Black rain is a phenomenon that occurs following an atomic blast when large amounts of material are taken up into the atmosphere. The material falls to earth in the course of a downpour which inevitably follows the blast. Dr Busby said that the ‘black rain’ contained radioactive materials including nanoparticles of enriched uranium.”
The Defence (ARPANSA) argument based on ICRP was discounted, the ICRP risk model was set aside for internal exposures of this sort, and the case was won by the widow.
This is the second Uranium particle colon cancer veteran case in which I have given evidence and which has been won; the earlier one was the Stewart Dyson Coroner jury case in 2009 where I mobilised all the same arguments and persuaded the jury that the cancer that killed Dyson, a Lance Corporal with the Royal Pioneer Corps, was caused by exposure to Uranium particles in Iraq.
Interestingly, the Secretary of State for Defence (SSD) who had been informed of this decision under Rule 43 of the Coroner Act wrote back to the West Midlands coroner Robin Balmain and disputed the decision. But, Mr Balmain wrote back:
“It is not a debate, the jury found what it found and I am bound by Rule 43 to communicate this to you. Later, when Dysons’s widow went to use the coroner inquest jury decision to claim a pension, it was refused by the SSD.”
I also gave evidence in 2012 in Los Angeles on a case against Boeing involving colon cancer in a woman, Debra Dawson, who developed colon cancer following exposure to uranium particles near the Santa Susana nuclear site (as did her husband).
For some reason the case was unexpectedly abandoned by the attorney that had commissioned me. These are big dogs. Maybe they made her an offer she couldn’t refuse.
But for UK bomb test veterans, it’s another story
There is a most interesting aspect to all this. And that is the difference between this Australian case and the treatment meted out to me in the UK Courts in relation to my expert evidence before the British nuclear test veterans Ionising Radiation Pensions appeals.
Here, in the Upper Tier appeal, the SSD attacked me on the basis that
(a) I was not an expert and
(b) even if I were, the fact that I am an activist (writing articles like this one, making videos) rules me out since that makes me ‘biased’ under English law.
I was in the witness box in the Royal Courts of Justice in June 2014 before Sir William Charles (the judge) for three days continuously being hammered by the SSD Queens Counsel.
My evidence before the Pensions Appeals Tribunals had been sidelined by the attorneys for the veterans (something I have earlier written about in The Ecologist and elsewhere). The judge was convinced and made a Direction that I could not be an expert in these issues in a British Tribunal.
By the way, this particular judge has been seriously criticised for bad judgment, for example in a thundering Guardian op-ed by Joshue Rozenberg. It turned out that he did not have the legal right to recommend any such thing, and the Direction is currently subject of a Judicial Review application.
Meanwhile, the successful appeal against the original decision on the veterans has been directed to a new hearing presided over by a High Court Judge, HH Judge McKenna, a woman, and head of the Upper Tier Tribunal. Busby is now the Representative (i.e. the attorney).
We all quake before the Majesty of the Law
I don’t think that this situation has ever arisen in the history of English Law. Here you have an expert who can persuade courts that there is a fatal error in the current assessment of radiation risk, of the evidence.
He gives evidence which causes four Pensions appeals cases cases to succeed before a judge, Hugh Stubbs. The evidence also persuades a coroner jury. And now the same evidence persuades the judge in the Australian Mahoney case.
In the 2013 combined 13-case hearing in London, following the removal of the commissioning attorneys Rosenblatts, this evidence is excluded by the new prosecution lawyers, Hogan Lovell, and is not considered.
The judge in the case, the same Hugh Stubbs, promptly dies before anyone can ask him to explain what is going on. But before he does so, Stubbs allows an appeal on the basis of Busby’s exclusion. The appeal is successful and the case is sent back for a new hearing.
But the expert (Busby) is now excluded from giving evidence by a new Judge, Sir William Charles. The expert (Busby) then becomes the representative (same as the lawyer), with the ability to cross examine Defence witnesses and refer to the original evidence (though the extent to which this is possible we wait to see).
Is there a precedent for an expert becoming a representative? I think not. What a circus! Anyway, you have to agree, not boring. Watch this space.
Dr Chris Busby is the Scientific Secretary of the European Committee on Radiation Risk and the author of Uranium and Health – The Health Effects of Exposure to Uranium and Uranium Weapons Fallout (Documents of the ECRR 2010 No 2, Brussels, 2010). For details and current CV see chrisbusbyexposed.org. For accounts of his work see greenaudit.org, llrc.org and nuclearjustice.org.