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Accident Compensation Cases

Wardle v Accident Compensation Corporation (ACAA, 04/12/98)

Judgment Text

DECISION 
P J Cartwright Judge
The issue on appeal is whether or not the appellant is entitled to cover pursuant to section 2 of the Accident Compensation Act 1982 for chemical poisoning which is claimed to have occurred over a period of months in 1984. 
The delay between the hearing of the appeal and the issue of this decision should be explained. Consistently the claim has been advanced by or on behalf of the appellant on the basis that he developed a condition of Multiple Chemical Sensitivity (“MCS”) as a result of exposure to chemical sprays such as paraquat and roundup over the subject period. Whether MCS exists as a disease entity is controversial. Consistency of medical opinion in this area is variable. It was agreed that the determination of the appellant's appeal would await determination of similar appeals in the cases of Burston (Decision No. 58/98) and McPherson (Decision No. 86/98) which respectively were delivered on 13 July 1998 and 7 October 1998. Following issue of those decisions the file relating to this appeal has come back to the Authority for completion of a decision. The Authority is mindful of the anxiety which the appellant has experienced during the long period of waiting for his appeal to be determined. While the delay in the issue of this decision is regretted, the initial period of delay between occurrence of the exposure to chemicals and subsequent filing of the claim with the Corporation in the 1992, has contributed significantly to the difficulties experienced in processing this claim. 
Background 
The appellant lodged a claim with the Corporation on 24 September 1992 for “reaction of chemicals causing headaches, visual problems etc.”. The medical certificate which accompanied the claim gave the date of accident as “1984”
The recommendation of the Corporation Medical Officer made on 27 October 1992 was simply to turn the claim down, because in his opinion the chemicals would have been totally excreted and eliminated from the body within 48 hours, including paraquat, even if swallowed. Dr Kent explained roundup is biodegradable when it is sprayed on soil and to suggest that the appellant was still having problems some years later “does not even warrant more time, effort and expense with questions.” 
In its consideration of the claim the Corporation asked Dr Rosamund Vallings for her opinion. In her letter of 2 November 1992 she explained: 
“As you say it is hard to prove that Mr Wardles symptoms are related to chemicals that he was in contact with eight years ago. However he was healthy young man until the time of the exposure and ever since then he has had many symptoms and has frequently been unwell and able to fulfil his normal commitments. No blood tests were done early on to prove that this was the cause of Mr Wardles illness but he did see Dr Matt Tizard in 1990 who using an E.A. V machine did tell him he was suffering from chemical poisoning. I am not sure of the validity of this type of diagnosis. 
Mr Wardle now works as a bank officer, and is no longer in contact with any chemicals. He does however find from time to time his symptoms of headaches, nausea and confusion are such that he is unable to work. 
Mr Wardle did see an ENT specialist apparently around the time of the poisoning and was told at the time he has more problems in the inner ear. I imagine it would be possible to make contact with this specialist and obtain more details. I appreciate the difficulties you are under with this kind of claim and will be happy to supply any other information which you may feel is useful. ”
The reference by Dr Vallings in her letter to Dr Tizard did not assist in the consideration of the appellant's claim. Dr Kent went on to recommend, on 10 November 1992, that the claim be declined because Dr Tizard had been struck off the medical register and his E.A.V diagnostic tool totally discredited. 
By letter of 17 February 1993 the Corporation informed the appellant that his claim for cover had been declined, on the basis of section 2 and section 98 of the Accident Compensation Act 1982. Against that decision review was sought, in an application which was filed by the appellant on 16 March 1993. The review hearing was held in Auckland on 12 May 1993 before a Review Officer in the presence of appellant. The appellant produced for the Review Officer a letter written by his brother, Rev. S R Wardle, Minister of Religion, which outlined the reasons why he believed that the appellant was suffering from toxic poisoning. Rev. Wardle also confirmed witnessing a number of changes in the appellant during the relevant period. Rev. Wardle stated: 
“I am writing to confirm that to the best of my knowledge, Mark Wardle has been suffering from toxic poisoning since the summer of 1984/85. I came to this conclusion for the following reasons; 
1.
Mark was a perfectly healthy person before that date. 
2.
It was at that time that Mark first came into contact with toxic chemicals. 
3.
From that date onwards, Mark suddenly began to suffer from nose bleeds, migraine headaches, fatigue, skin allergies etc. until finally in Nov/Dec 1988, Mark began to suffer from more serious problems e.g. depression, hallucinations, chronic fatigue, nervous disorders etc. To this date Mark still suffers from many of these symptoms, which were a contributing factor to why he resigned from his job. 
As I lived at home with may[sic] parents and Mark before and during this time, I was able to see first hand how his illness changed Mark's life. Before Mark became ill, he was a normal healthy person who enjoyed participating in various kinds of sporting activities, and was very capable in his profession. Due to the mental and physical stress that resulted from his illness, Mark is no longer able to have the same enjoyment in life that he had previously. 
Mark has been left sensitive to many chemicals that are used in everyday life, that normal healthy people are not affected by. This has affected every area of his life. 
I therefore feel that I am a reliable witness to speak on Mark's behalf as I am in no doubt as to the cause of Mark's illness - chemical/toxic poisoning. 
If you wish to contact me further on any of the above information, please feel free to do so. ”
Because there was no specialist opinion relating to the claim, the Review Officer, with the appellant's agreement, arranged for him to be examined and assessed by Professor Gavin Kellaway. In his report to the Corporation of 9 June 1993 Professor Kellaway explained: 
“I saw Mr Wardle for ACC evaluation as requested on 21.5.93. He has lodged a claim for compensation for reactions to chemicals which were sprayed on their section in approximately 1984 and 1985. The opinion expressed below has been arrived at after consideration of the date you sent me, his history at the time of my assessment, full examination and perusual[sic] of additional tests undertaken subsequent to my seeing him. 
He currently complains of chronic fatigue most days. This is not a consistent problem since some days he is worse than others but he tends to have periods of serious fatigue for periods of up to 2 weeks at a time. He complains also of headaches, usually at the back of the neck but sometimes in the frontal area and not occurring at any particular time of day. At times he finds it difficult to get comfortable on his pillow at night because of these pains. He has problems with indigestion mainly substernal burning discomfort but also a burning discomfort in the epigastrium accompanied by much flatulence (wind) and some distension. At times he finds orange juice, eating grapes, eating nuts and certain other foods almost entirely impossible to consume because of the severe, at times excruciating, pain. He claims he cannot swallow without refilling a glass of water and drinking with each mouthful. In relation to this he also complains of frequent nausea. 
He also complains that his learning capacity is considerably reduced since 1985 and he suffers with stinging and watering of the eyes, with focusing problems and occasional blurring of vision. Mentally he has periodic difficulty in concentration and his short term memory is poor. He has recurring skin rashes which he dates back to 1985, recurring, pains across the back of the shoulders and back of the neck. He sometimes finds that pressing the back of his neck relieves his burping symptoms. His hands hand and feet he says sweat profusely from time to time and since 1985 he has had intermittent nosebleeds. 
He relates all of these symptoms to the time when his parents bought a section and used roundup and paraquat over the summer of 1984 - 1985 to clear the section of gorse. He said his brother and mother have much the same problems as he has. 
His numerous symptoms are clearly exemplified by his states of what amounts to chronic ‘illness’. Where a type of chronic fatigue syndrome persists fluctuations in daily symptoms and performance are all part of the problem and after awhile very diffuse bodily systems become involved in the process. 
My suspicion of mild autoimmune problem has been explained above. In degree it is very modest and most patients who have this problem diagnosed appear to manage reasonably well with symptomatic care and attention to foods and activities which seem to aggravate the problem. In this instance Mr Wardle appears to have reached quite an advanced stage of semi-invalidism with his problem. I doubt whether there is any positive medical treatment that will help the situation. He certainly has explored the paramedical scene with homeopathy and Dr Tizard for a long time without any major improvement. 
In summary therefore I believe that he does have genuine symptoms and that these can be related to a low grade autoimmune problem. I know of no evidence to suggest that chemical poisoning can precipitate autoimmune disorders although the subject clearly attracts considerable debate around the world and I refer you to an article in Health and Environment Digest, Volume 6, Noll, March 1993 and copy of which you would be able to obtain from Dr Kevin Bremner, Legislation Interpretation Unit of the ACC, PO Box 242, Wellington. 
Under current circumstances of medical knowledge I do not believe that this claim can be sustained. ”
The appellant was invited by the Review Officer to comment on Professor Kellaway's report. With his responding letter of 26 June 1993 the appellant enclosed a copy of a letter written by Dr B Tye dated 25 May 1993 which states: 
“On the 21st May 1993 Mr. Mark Wardle consulted me regarding his appeal to the A.C.C. for a problem of multiple sensitivity syndrome. He believes this problem occurred during the summer of 1985 when he was clearing his section with his brother using Roundup and Paraquat. During the time of use of these two chemicals some of this spilled on to his skin. 
Soon after this exposure he began to feel ill with bouts of dizziness, fatigue, sweats, patches of dry sore skin, episodes of mental confusion and headaches. He made several visits to his general practitioner who examined and carried out blood screening checks with no abnormalities. On one occasion his general practitioner referred him to Greenlane Ear Nose and Throat Department because of the episodes of dizziness. Mr Wardle is to try and obtain copies of this consultation. 
These symptoms would improve only to re-occur when he was exposed again to toxic materials such as paint fumes, petroleum fumes and garden sprays. Prior to this exposure he had no past history of medical complaints and has no family history of allergies. 
Despite seeking various forms of treatment Mr Wardle was unable to maintain his job. He was a Bank Officer and had worked himself to a responsible position, but because of his memory problems he found the work too demanding. He was relocated to another post but eventually this condition forced him to leave the bank in 1992. 
Examination today reveals no physical abnormalities. It is my opinion that Mr Wardle suffered from ongoing exposure to toxic chemicals which led to a chronic fatigue syndrome and the development of multiple chemical sensitivity. This recurrent fluctuating debilitating illness unfortunately has no confirmatory biological tests and the diagnosis can only be made by the observation of his previous good health, his known exposure and subsequent collection of symptoms from which he now suffers. 
I note the comments made by the medical officer to the A.C.C. regarding Mr Wardle's attempt to be treated by alternative methods from Mr Tizard. Such actions should not preclude his assessment under the A.C.C. of this condition. ”
The appellant also provided the Review Officer with copies of various articles and documents by way of commentary on MCS. 
After considering all of the evidence the Review Officer concluded there was no merit in the appellant's case in a decision which issued on 9 November 1993. The Review Officer advanced the following reasons for her decision: 
1.
Dr Vallings in her report of 2 November 1992 acknowledged the difficulty in proving a relationship between the appellant's symptoms and his exposure to chemicals eight years earlier. 
2.
Dr Kent had referred to the discrediting of Dr Tizard's EAV diagnosis and his then status in the medical profession. 
3.
Corporation policy in Medical Information Bulletin No. 56 of March 1981 not to accept claims for personal injury by accident resulting from pesticides or other poisonings diagnosed by EAV. 
4.
Professor Kellaway's long term involvement and expertise in the area of furnishing reports to the Corporation on similar type claims. 
5.
A lack of any clear evidence to convince her that a mild autoimmune disorder can be precipitated by chemical poisoning. 
6.
An expressed preference for Professor Kellaway's opinion to that of Dr Tye, on the basis of Professor Kellaway's expertise and his conclusions following his investigations and research. 
It is against the Review Officer's decision that this appeal has been brought. 
Additional Evidence 
On 9 December 1993 the appellant was examined by Dr Adrian Harrison, an Auckland Respiratory Physician. Presumably this consultation was arranged by Dr Vallings to whom Dr Harrison's report of 9 December 1993 is addressed. In that report Dr Harrison stated: 
“Re: MARK WARDLE, d.o.b. 20/3/63 
43 Stannilands Street, Pakuranga 
DIAGNOSIS 
1.
Multiple chemical sensitivity syndrome. 
I saw Mr Wardle on 9/12/93 as part of his claim to the Accident Rehabilitation and Compensation Insurance Corporation. 
He is a lifelong non-smoker who enjoyed excellent health up until late 1984. In December 1984 and January 1985 Mark, his father and brother were working on a large section with Roundup and Paraquat. Besides spraying these agents himself Mark would also be involved cutting down scrub with a scythe whilst sprays were being used about 20ft away. In early February 1985 his health deteriorated with the development of persistent severe headaches, profound lethargy, epistaxes, sweaty hands and feet, which also had paraesthesiae. He also developed a rash on the trunk and axilla, and subsequently the axillary rash continued for nearly four years until he finally eliminated deodorants. He was markedly depressed for about a six month period. 
Over the years since then he has had persistent and fluctuating problems with fatigue, marked difficulty with concentration, confusion and inability to learn. He was off work for three months during 1988/89, and then was place on light duties for two years after that in the bank where he had been employed. Eventually he found he was just unable to learn the new procedures and resigned in September 1992. 
Vision has been a problem with impairment of distance vision in particular. His vision fluctuates markedly, and he frequently notices blurred vision despite spectacles. He has also suffered with intermittent abdominal pain and diarrhoea, at times moving his bowels six times an hour for a period of weeks, and then normal bowel motions for several weeks. Newsprint causes him to develop generalised itching and tinging eyes. Orange juice and wine cause burning retrosternally. Other foods and drinks can do this also. He has intermittent swallowing difficulties and at times feels forced to drink large amounts of water. Intermittent nausea is also a problem. He becomes nauseated if exposed to perfume, petrol fumes, cigarette smoke and car fumes. 
He has undertaken exercise programmes and gradually built up his exercise tolerance using an exercycle, but has found on several occasions that when the Council sprays the reserve adjacent to his property he becomes unable to exercise (because exercise then makes him ill), he develops vomiting, profound lethargy and headaches. Intermittently over the years he has had muscular aches and pains. 
Examination 
On examination there was no clubbing or adenopathy. He had no skin rashes or abnormality of his joints. His lung fields were perfectly clear, cardiovascular examination was normal with BP 130/80 and pulse 80 and regular. Neurological and abdominal examination were both unremarkable. 
Assessment 
1.
The multi-system illness from which he suffers is typical of the multiple chemical sensitivity syndrome. His sensitivity to a variety of fumes and smells, with worsening of his illness with exercise and in particular precipitation of relapses caused by Council spray at the nearby reserve are all entirely consistent with multiple chemical sensitivity syndrome. 
2.
The possibility of Mr Wardle having some sort of immune condition causing his illness has been raised. However, I do not believe the trigger factors described above are at all likely to affect any known immune disorder. Furthermore, the rheumatoid factor and fluorescent antibody titres are both so low that they are not diagnostic of anything. These results are positive in a percentage of the normal population. The levels detected would not be accepted by any clinician as being diagnostic of any known immune disorder. I therefore believe it is intellectually dishonest to claim that Mr Wardle's illness is due to some non-specified immune disorder. The immune testing results do not support any immune dysfunction. Furthermore, this man has profound multi-system complaints which do not fit any known immune disorder whilst at the same time being typical of multiple chemical sensitivity. ”
Apparently the appellant wrote to Professor Kellaway questioning his qualifications to give the opinion which was relied upon substantially by the Corporation in declining the claim. Professor Kellaway's letter of 13 December 1993 to the appellant states, in part: 
“In referring to my summary I believe this indicated that there was an organic problem, probably due to a low grade autoimmune disturbance. Further classification of these rather vague autoimune problems is not possible. With more serious autoimmune disorder one can get round to diagnosing diseases such as dissemintated lupus erethymatosis, rheumatoid arthritis, etc. It is my personal opinion that trigger circumstances can provoke immune disorders and again it is a personal opinion that chemical interference, poisoning etc. may be that trigger mechanism. The International Conference I mentioned in my report presented the data which I believe supports such a thesis; but in fact the consensus opinion of those in authority is not yet prepared to accept this and I enclose a copy of an article from Health & Environment on Multiple Chemical Sensitivity. As you can see as far as those who make decisions about compensation I hold a somewhat different view to theirs and as you have already pointed out since I'm not a specialist in ME, MCS and chronic fatigue syndrome they clearly prefer to take their own opinion rather than mine. 
The abnormal tests which led me to believe that you do have a mild autoimmune problem were a positive fluorescent antibody titre of 1 in 80 and a weakly positive RF anti-rabbit IgG of 28 (normal up to 20). The findings are not major but I believe are significant. 
Finally I can only say that it is my opinion that toxic chemical poisoning, some viral infections and other factors which may involve major disturbance in the immune system of the body can at times produce autoimmune problems. Incontrovertible scientific proof of this is however lacking and I believe that is simply a feature of current knowledge rather than that my surmise is not correct. ”
That Professor Kellaway did not possess the expertise in the area under focus is acknowledge by a Corporation solicitor in her letter of 8 June 1995 to the Registrar of the Appeal Authority. Ms Hancock stated “As it has now become clear that Dr Kellaway, from whom the Corporation originally obtained a report, is not an expert in this field, I believe that it is imperative to obtain an independent report on Mr Wardle's symptoms from someone with the appropriate qualifications and experience”
Ms Hancock went on to explain that she had arranged an appointment for the appellant to see Dr Vincent Crump, an Allergy and Internal Medicine Specialist in Auckland, with some knowledge and experience of MCS. Dr Crump examined the appellant on 6 October 1995 and gave the following evaluation in a report which is dated 13 October 1995: 
“I gather that he has lodged a claim with ACC for multiple chemical sensitivity, following use of Roundup and Paraquat in 1984/85. 
Mr Wardle describes a long list of specific symptoms involving all his major organs including Rhinoconjunctivitis, coughing, wheezing, headaches, poor memory and concentration and associated confusion, stomach pain, nausea, frequent bowel movement and flatulence. He also has several other non-specific symptoms like chronic fatigue. 
All his symptoms date back to the summer of 1984/85 after clearing a section and using the above pesticides. The initial symptoms included numbness in his hands and feet, dizziness, migraines and nose bleeds. 
Past Medical History: He had eczema as an infant, but no asthma or hay fever. 
Environment: No pets, non-smoker. He worked as a bank officer up until 3 years ago. 
Family History: No allergies 
Medication: Homeopathic remedy used as required. 
On Examination: No significant abnormal finding. 
B.P 130/90 (sitting and standing). Pulse 80 — regular. Skin prick tests to common allergens revealed moderate positivity to house dust mite and cat. It also suggested that he had dermographism. (Skin reacting to stroking causing an urticarial reaction to all the skin pricks. 
Impression: Mr Wardle is atopic based on his history and skin test results. He has allergic rhinoconjunctivitis related to house dust mite. This contributes to a lot of the symptoms he describes. 
It is well known that people with allergic rhinoconjunctivitis will react to non-specific irritants like cigarette smoke, car exhaust fumes, perfume, chemical vapours etc. In view of his childhood eczema it is likely that his allergic diatheses antedates his chemical exposure. 
It is uncertain but possible that having an atopic (allergic) background makes one more susceptible to Multiple Chemical Sensitivity. 
His symptoms are of someone with an hyperactive airways and it is impossible to say whether they are due to his underlying allergic rhinoconjunctivitis or whether he does have superimposed MCS which aggravates his symptoms. 
The diagnosis MCS is always fraught with difficulty. Enclosed is a copy of objective criteria I used to assess MCS as adapted from MCS experts in the USA. ”
The final medical report adduced as additional evidence was written by Dr Vallings on 8 February 1996. This report does not add to the base of medical knowledge concerning the appellant's condition. 
Decision 
First, it is necessary to address a short jurisdictional point which was raised by Ms Hancock. 
To have his claim for cover accepted, Ms Hancock submitted the appellant must show that the disease he is said to suffer from is or was due to the nature of employment in which he was employed as an earner. Following inclusion in her submissions of the definitions of “Earner”, “Employee” and “Employer”, Ms Hancock argued it is clear that the appellant must show that he was under a contract of service and in an employer/employee relationship at the relevant time. 
The appellant's evidence at review (from page 7 of the transcript onwards) was that the exposure to chemicals occurred in 1983/1984 when he spent a period of time working on his parent's section, and also from spraying which the Council undertook on a reserve across from his house. 
Ms Hancock submitted that the appellant's work on his parent's section cannot be said to be in the form of a contract for service and certainly would not attract the label of an employee/employer relationship, such as the Act requires. Further, Ms Hancock argued the exposure said to have occurred from Council's spraying cannot be said to be due to any employment in which the appellant was employed. Therefore Ms Hancock submitted the appellant has not shown that he was employed as an earner for the work in question. Accordingly it was Ms Hancock's position that the appellant is not entitled to the benefit of cover under section 28 of the Act, the definition of “personal injury by accident” including “incapacity resulting from an occupational disease … to the extent that cover extends in respect of the disease under section 28 of the Act.” 
Although the appellant's injury may have been caused by exposure to chemicals over a period of months, rather than by one specific contained incident, it does not necessarily follow that the claim must be considered under section 28 of the Act. Without considering a need to discuss or consider in any detail the dichotomy of the continuous process argument as against a series of accidents argument, the Authority is satisfied, provided the necessary causal link is established, that cover can be made available to the appellant as personal injury by accident simpliciter under section 2 of the Act. 
The Authority accepts the submission that the onus of proof lies upon the appellant to show, to the standard of probabilities, that he has suffered personal injury by accident in terms of the Accident Compensation Act 1982. 
However the Authority does not accept the further submission, that to afford the appellant cover, the Appeal Authority must be satisfied that: 
1.
MCS exists as a disease. 
2.
That if it exists, MCS is caused by exposure to chemicals such as paraquat and roundup. 
3.
That the appellant suffers MCS. 
Having determined the appeals in favour of the appellants in Burston and McPherson, the Authority is now much better placed to understand the complexities of the debate concerning MCS. The case as argued by Ms Hancock, on behalf of the respondent, is very similar to the way in which the Review Officer's consideration of the application in Burston developed. As was noted by the Authority at p21 in Burston
“The outcome was almost predetermined. By establishing that there was insufficient evidence to justify the existence of a disease entity called MCS, the Review Officer effectively precluded herself from carrying out an objective assessment as to whether, in any event, the appellant had suffered personal injury by accident. ”
The situation in this case is almost on all fours with a similar situation in Burston about which this Authority had to say (p.22): 
“In this appeal the appellant is required to satisfy the Authority that the Review Officer was wrong to dismiss his application. In so doing it would be futile to spend too much more time on an assessment of the validity or credibility of MCS. Rather the Authority considers the centre of attention should now move to considering whether, on the balance of probabilities, a causal nexus exists between workplace exposure to a number of chemicals and solvents, and an acknowledged debilitating illness. The case for the appellant should not invoke any significant questions involving MCS. When the evidence relating to whether the disease entity of MCS is put completely to the side, the Authority must assess whether there is sufficient evidence to warrant a finding, on the balance of probabilities, that there existed a causal link between chemicals exposure and the debilitating illness. The Authority considers that the apparent significance of and undoubted emphasis upon the credibility of MCS as a disease entity, has deflected appropriate attention from other facts which themselves may lead to a logical conclusion of causal nexus. ”
In focusing on causal nexus the only difference between the factual situation in the two appeals is that in Burston there was a workplace component, whereas in this case there is none, leaving therefore a consideration of whether personal injury by accident simpliciter is capable of being established under section 2 of the Act. 
Rightly so, Ms Hancock was critical of the report from Dr Tizard. Upheld is her submission that Dr Tizard's diagnosis of chemical toxicity and multiple chemical sensitivity must be discounted. 
However, Ms Hancock was almost equally critical of the reports given by Dr Vallings and Dr Tye. Unfortunately, the Authority cannot agree with Ms Hancock that the report of Dr Vallings has little value because it contains no discussion of whether MCS as an entity exists, or whether the appellant suffers from such a disease. In the Authority's view this report is valuable for its history of the appellant as being healthy prior to exposure and suffering from a variety of symptoms since exposure. It was a logical conclusion on the part of Dr Vallings that “It is hard to prove that Mr Wardle's symptoms are related to chemicals that he was in contact with 8 years ago.” 
It is accepted that Dr Tye made no investigation other than to carry out a physical examination of the appellant. But again the Authority considers Dr Tye's report has some value for the history it contains of the difficulties suffered by the appellant, and the fact that his examination revealed no physical abnormalities. Nevertheless, it was Dr Tye's opinion that the appellant suffered from ongoing exposure to toxic chemicals which had led to a chronic fatigue syndrome. The conclusion that MCS developed therefrom is only Dr Tye's opinion, and does not, in the Authority's view, diminish Dr Tye's opinion that the appellant's ongoing exposure to toxic chemicals led to a chronic fatigue syndrome. 
In his report of 9 June 1993 Professor Kellaway expressed his belief that the appellant did have genuine symptoms and that they could be related to a low grade autoimmune problem. However, Professor Kellaway said he knew of no evidence to suggest that chemical poisoning could precipitate autoimmune disorders although he acknowledged that the subject clearly attracted considerable debate around the world. 
In challenging this conclusion the appellant referred Professor Kellaway to a written opinion he had given by letter of 28 November 1991 to the Review Officer in the case of the Mr McInnes. Professor Kellaway stated in that letter: 
“I consider that Dr Howard is totally incorrect when he says, that herbicide poisoning does not effect the body's immune system. Had Dr Howard the advantage of having attended the World International Conference on Clinical immunotherapeutics in Paris in May this year as I did he would be aware of an enormous upsurge in recognition of autoimmunity as a problem precipitated by other factor. 
His quotation ‘this is a universally held opinion’ is the universal opinion which has delayed recognition of autoimmune disorders 3 or 4 decades beyond that which would have been the case had the science of immunology become widely known in medicine. 
I'm not saying that it is absolutely certain that herbicides precipitated the autoimmune problem in Mr McInnes but on the other hand we are not in a position to prove that they did not. The timing of disturbance and onset of persistent problem is very suggestive in his case and I am prepared to restate my previous opinion …  ”

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