Fuss v Repatriation Commission

Federal Court of Australia|2001-11-02|Before: Wilcox J

WILCOX J: 1 This is an application, by way of appeal, against a decision of the Administrative Appeals Tribunal ("the Tribunal") in connection with a claim for a widow's pension under the Veterans' Entitlements Act 1986. Section 44 confers a right of appeal to this Court only in respect of error of law.

The Background 2 The applicant, Dulcie Edna Fuss, is the widow of Albert Walter Fuss who died on 7 April 1998. Mr Fuss served in the Defence Force, apparently in the Australian Army, from 28 June 1941 to 24 January 1946. During approximately six months of that period, he was stationed in Morotai, an island in what is now Indonesia. 3 On Mr Fuss's death certificate, the stated cause of death was "metastatic carcinoma of unknown primary 2 months". At the hearing before the Tribunal, the parties agreed the cause of death was properly to be described as "metastatic adeno-carcinoma of unknown primary". The Tribunal, having reviewed the evidence, so found. 4 In relation to cause of death, the Tribunal said in its reasons: "The diagnosis had been established by way of liver biopsy prior to his death, with histo-pathological examination of the biopsy specimen revealing the metastatic tumour to be an adenocarcinoma, with suggested primary source being large intestine, stomach, pancreas, prostate etc. No primary site of the carcinoma was established prior to death. No autopsy was undertaken." 5 The Tribunal received evidence from a number of medical witnesses. One of them was Dr Peter Katelaris, a clinical gastroenterologist. Dr Katelaris propounded the hypothesis that Mr Fuss may have contracted Helicobacter pylori infection during his service at Morotai, with this infection leading many years later to the development of gastro adenocarcinoma and subsequent metastasis. Dr Katelaris acknowledged there was no direct evidence that Mr Fuss suffered from gastro adenocarcinoma but he gave reasons for believing the pancreas was not the site of the primary carcinoma. He also acknowledged there was no direct evidence of H pylori infection. However, Dr Katelaris observed this infection is related to hygiene and living standards and is more common in countries with poor socio-economic living standards. Further, Mr Fuss had been diagnosed in about 1992 with a duodenal ulcer and there was a significant association (90% or more) between duodenal ulceration and H pylori infection. The Tribunal member summarised Dr Katelaris' hypothesis in this way: "This veteran's application was rejected as it was considered he had cancer of the pancreas not related to war service. The diagnosis of cancer of the pancreas is an assumption based on a clinical possibility but it is not established. Available evidence from imaging procedures does not support this diagnosis. It is certainly possible that the veteran died of metastatic gastric adenocarcinoma. This cannot be proven, as an autopsy was not carried out. However, a plausible hypothesis is that the veteran acquired H pylori infection during his period of service in south-east Asia during World War 2. Infection of the stomach with H pylori is known to contribute to the later development of gastric adenocarcinoma. It is possible for the endoscopy not to have revealed a primary adenocarcinoma if it was a small flat lesion in an area of gastritis or if there was a non-visible linitis tumour. The histology on the liver biopsy demonstrating adenocarcinoma of unknown origin was certainly consistent with a gastric primary among other possible diagnoses. This hypothesis is plausible and in accord with current medical knowledge. It cannot, however, be proven at this time with more certainty."

The Statement of Principles 6 The Repatriation Medical Authority has determined a Statement of Principles ("SoP"), under s 196B(2) of the Veterans' Entitlements Act, concerning malignant neoplasm of the stomach (Instrument No 67 of 1997). The SoP contains a definition of the words "malignant neoplasm of the stomach": "a primary malignant neoplasm arising from the cells of the stomach, attracting ICD code 151", but excluding certain conditions not relevant to this case. The reference to "ICD code" is a reference to the ninth revision of The Australian Version of The International Classification of Diseases. The SoP definition was amended in 1998 to include a definition of the stomach. 7 Paragraph 3 of the SoP records the Authority's view "that there is sound medical-scientific evidence that indicates that malignant neoplasm of the stomach and death from malignant neoplasm of the stomach can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces." 8 Paragraph 5 of the SoP sets out "factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting malignant neoplasm of the stomach or death from malignant neoplasm of the stomach with the circumstances of a person's relevant service". They include: "(b) for carcinoma of the fundus, body, antrum or pylorus of the stomach only, (i) contracting Helicobacter pylori infection at least ten years before the clinical onset of malignant neoplasm of the stomach;" 9 The term "carcinoma of the fundus, body, antrum or pylorus of the stomach" is defined as "a carcinoma that has arisen in the mucosa of any part of the stomach, excluding that part of the stomach immediately adjacent to and surrounding the opening of the oesophagus (the cardia of the stomach) that is distinguished histologically by the presence of cardiac glands and the absence of parietal (acid secreting) and chief (pepsin secreting) cells".

The Tribunal's decision 10 After referring to the SoP, the scheme of the relevant legislation and various decided cases, the Tribunal expressed its conclusions. In para 35 of its reasons, the Tribunal said: "The Tribunal notes that there are two fundamental elements to both the hypothesis and the SoP factor 5(b)(i) contained within Instrument No 67 of 1997. The first relates to contracting Helicobacter pylori infection at least ten years before the clinical onset of malignant neoplasm of the stomach. The Tribunal in assessing this element against the factual circumstances before it, is unable to indicate the existence of a particular fact, which points to the existence of a Helicobacter infection in the late veteran." 11 The Tribunal went on to say "it was encouraged to accept that inferences or assumptions could be properly drawn from particular facts" which it set out. They may be summarised as follows: (i) the veteran served in a low socio-economic environment in Morotai; (ii) such communities have a high incidence of Helicobacter infections; (iii) the veteran suffered from a duodenal ulcer in 1997 [sic: 1991], a circumstance that points to the possibility of infection with Helicobacter pylori continuance at that time; (iv) the absence of H pylori organisms in endoscopic biopsies taken in December 1997 does not negative the possible presence of such organisms in other parts of the stomach at, or before or after, that time; and (v) a small gastric adenocarcinoma may have been missed at endoscopic examination, or a particular form of submucosal gastric adenocarcinoma (linitis plastica) may have existed notwithstanding ultrasound studies and CT and MRI scan investigations. 12 The Tribunal did not suggest the evidence negatived any of the suggested facts. However, it was uneasy about accepting Dr Katelaris' hypothesis. 13 In relation to the first of the two "fundamental elements" of the hypothesis, the Tribunal noted "the somewhat tenuous and remote nature of the proposition that the late veteran was infected with Helicobacter pylori while serving in Morotai", because of the lack of any evidence as to living conditions at Morotai and opportunities for cross infection from the local population. The Tribunal said it had "to assume that the 45 year period of latency is of no consequence in the absence of particular gastric disorder until 1991, when a duodenal ulcer was diagnosed" and it was "asked to disregard the history of the late veteran's medication with non-steroidal anti-inflammatories, both prior to his diagnosis of duodenal ulcer and after, and place little weight upon the absence of the organism in the biopsy sections". 14 The Tribunal then said, in para 38: "In so far as this element of the hypothesis is concerned, the Tribunal, notes the absence of particular facts in the material which of themselves would allow the Tribunal to establish this element of the hypothesis. For this element of the hypothesis to be established, the Tribunal would have to rely upon a series of assumptions, not all of which are interrelated. As a consequence, the Tribunal concludes that this element of the hypothesis is too remote and/or too tenuous." 15 The Tribunal then turned to "the second element of the hypothesis" and commented it "experiences even greater difficulty in establishing such an element from the material placed before it". The Tribunal said (at paras 39 and 40): "… the Tribunal notes that there is nothing in the material, which would directly point to the stomach as the primary site of the adenocarcinoma, other than its inclusion along with pancreas, bile ducts, larger intestine etc, as sites having a common pathological mucosal definition. To establish the stomach as the primary site of the adenocarcinoma, the Tribunal, in effect, is being asked to disregard the treating gastroenterologist's endoscopy findings as to the absence of such an adenocarcinoma and to reject the ultrasound, CT and MRI findings. In short the Tribunal is being asked to, at best, ignore such findings, or, at worse, to draw negative inferences from them, and at the same time to make a series of assumptions that involve: the treating gastroenterologist missing the lesion at endoscopy; or alternatively, assume the existence of a particular form of the cancer (linitis plastica) which was missed by the endoscopist at endoscopy and not demonstrated by any of the ultrasound or radiological investigations. … In considering the second element of the hypothesis, the Tribunal observes that the hypothesis is postulated not so much on the investigatory facts before the Tribunal, but on a series of assumptions. This assumptions are built on the failure of the treating endoscopist to visualise a small gastric adenocarinomatous lesion or alternatively the presence of a particular form of gastric adenocarcinoma. While such is argued before the Tribunal, in the absence of any material before it to point to such assumptions, the Tribunal cannot see that the second element of the hypothesis is properly established. This is because it involves a series of hypothesis which would give rise to the alternate hypothesis, as opposed to a hypothesis being formulated or pointed to by the raised facts. In essence, the process where a hypothesis is dependent on the existence of another hypothesis is seen by the Tribunal to be too tenuous and/or too remote." 16 The Tribunal concluded, at paras 41 and 42: "It is for the reasons nominated in this decision that the hypothesis, relating infection with H pylori, gastric adenocarcinoma and death from metastatic adenocarcinoma, is not raised (or pointed to) by the material before the Tribunal, as the essential elements in the hypothesis are not raised (or pointed to) by the material. Further, the Tribunal concludes that for the same reasons, (that essential elements of the hypothesis are not raised (or pointed to) by the material before the Tribunal), such a hypothesis as postulated by the Applicant is not a reasonable hypothesis for the purposes of subsection 120(3) of the Act. Repatriation Commission v Deledio (198) 83 FCR 82 considered and applied."

Section 120 17 Section 120(1) of the Veterans' Entitlements Act provides that, where a claim under Part II for a pension in respect of the death of a veteran relates to the operational service rendered by the veteran, "the Commission shall determine … that the death of the veteran was war-caused … unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination". 18 Subsection (3) provides that, in applying subs (1), "the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining … that the death was war-caused … 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 … death with the circumstances of the particular service rendered by the person". 19 Section (6) refers to onus of proof. It reads: "Nothing in the provisions of this section, or any other provision of this Act, shall be taken to impose on: (a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or (b) the Commonwealth, the Department or any other person in relation to such a claim or application; any onus of proving any matter that is, or might be, relevant to the determination of the claim or application." 20 The references, in s 120, to "the Commission" apply to the Administrative Appeals Tribunal when reviewing a decision of the Commission: see s 43 of the Administrative Appeals Act 1975. Bushell and Byrnes 21 In Bushell v Repatriation Commission(1992) 175 CLR 408, the High Court of Australia considered what was meant, in s 120(3), by the words "raise a reasonable hypothesis" connecting the death with the person's service. 22 At 414 Mason CJ, Deane and McHugh JJ said: "The material will raise a reasonable hypothesis within the meaning of s 120(3) if the material points to some fact or facts ('the raised facts') which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true. Clearly enough, a relevant consideration in forming an opinion whether a particular hypothesis is reasonable is whether, as a matter of common or medical experience, the occurrence of an injury etc. of the kind sustained by the veteran is commonly accompanied by or associated with the occurrence of raised facts of the kind which constitute the relevant incidents of the service of the veteran. However, a hypothesis may still be reasonable even though such an accompaniment or association is not demonstrated or even if it is shown to be uncommon. So, in determining whether a hypothesis is reasonable for the purpose of s 120(3), it is not decisive that a connexion has not been proved between the kind of injury which occurred and circumstances of the kind which constitute the relevant incidents of the veteran's service." 23 Brennan J (at 425) said: "Unless the material before the decision-maker, unaffected by any notion of onus of proof or by any presumption, raises a reasonable hypothesis of a causal connexion between the morbid condition and the veteran's operational service, the decision-maker is directed to form the relevant negative conclusion specified in par (a), (b) or (c)." At 427 his Honour elaborated: "The causal connexion with which sub-s (3) is concerned often depends, as in the present case, on a theory of medical science. Some theories assert and others deny a connexion between a particular morbid condition and a postulated cause. The decision-maker is directed to determine from the material before itwhether there is a 'reasonable hypothesis' that the circumstances of operational service are connected with the veteran's morbid condition. Again, the absence of any material raising such an hypothesis may lead the decision-maker to seek further investigation of the claim. However, at the end of the day, unless the material raised such an hypothesis, the decision-maker must be satisfied beyond reasonable doubt that there is no causal connexion. But sub-s (3) goes no further than directing that conclusion when the material does not raise a 'reasonable hypothesis'. If the material does raise a reasonable hypothesis, sub-s (3) does not operate and the ultimate determination of a causal connexion must be made on the whole of the material pursuant to sub-s (1)." (Original emphasis) 24 Toohey J commented (at 438) that "the scheme of s 120 is such that the Commission inevitably turns its attention first to subs (3). In doing so, it does not proceed on the basis of any onus, whether as to 'reasonable hypothesis' or otherwise. That is a consequence of subs (6)". His Honour went on: "While sub-s (3) is epexegetical of sub-s (1), it is not exhaustively so. If the commission is of the opinion that the material does raise a reasonable hypothesis, it may nevertheless refuse a pension if it is satisfied that there is no sufficient ground for making a favourable determination. Even though sub-s (3) itself has not led to a rejection of a claim, the claim may be dismissed if, in the words of Davies J in the present case, 'the decision-maker is satisfied beyond reasonable doubt on all the evidence that any necessary element of fact did not exist, or that the theory was, in the circumstances of the case completely untenable'. It may be, for instance, that the Commission is satisfied beyond reasonable doubt that, on the facts, an applicant did not come by the injury or the disease in the manner claimed. The claim will then be dismissed. But ordinarily, if the Commission is not of the opinion identified in sub-s (3), a claim for a pension will succeed." 25 In Byrnes v Repatriation Commission (1993) 177 CLR 564, the High Court returned to the same subject. The appellant suffered cervical spondylosis. He claimed to have sustained injury to his neck on three occasions during his service in the Royal Australian Navy, one being an occasion when he dived into shallow water in a swimming pool at Townsville. Thereafter he spent five days in hospital being treated for neck pain. An orthopaedic surgeon gave evidence to the Tribunal that it would be wrong to say there was no relationship between the Townsville injury or the appellant's medical condition. He thought a link between the two was a reasonable hypothesis, although he conceded he did not know the extent of any ligamentous injury the appellant had sustained at Townsville. Counsel for the Commission relied on that circumstance in submitting to the High Court that the evidence failed to raise facts supporting the hypothesis; without evidence that the appellant sustained a severe injury to his neck, the material did not point to facts which, if true, would support the hypothesis. 26 The Court responded to the argument in this way (at 569-570): "The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than that the material before the Commission must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified, the question for determination is whether the hypothesis is reasonable. In Bushell, Mason CJ, Deane and McHugh JJ said: '[A] hypothesis cannot be reasonable if it is "contrary to proved scientific facts or to the known phenomena of nature". Nor can it be reasonable if it is "obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous".' In some cases, the hypothesis may assume the occurrence or existence of a 'fact'. That itself does not make the hypothesis unreasonable. So, in the present case, the appellant's hypothesis is not unreasonable simply because it assumes that the appellant sustained a severe injury when he dived into a swimming pool in Townsville, notwithstanding that the materials before the Commission did not reveal the extent of the injury which he then suffered. Once a reasonable hypothesis is raised, the question for the Commission is then whether it is satisfied beyond reasonable doubt that there is no sufficient ground for making a determination that the injury was war-caused. The Commission will be so satisfied if it is satisfied beyond reasonable doubt that the factual foundation of the hypothesis has been disproved, either by proof beyond reasonable doubt that a fact or fact relied upon to support the hypothesis is not true, or by proof beyond reasonable doubt of the truth of a further fact, inconsistent with the hypothesis." (Original emphasis)

Section 120A 27 Shortly after this decision, s 120A was added to the Veterans' Entitlements Act. Subsection (1) made the section applicable, inter alia, to a claim under Part II of the Act, made after 1 June 1994, concerning operational service rendered by a veteran. Subsection (3) provided inter alia that, for the purposes of s 120(3), "a hypothesis connecting … the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force … a Statement of Principles determined under subsection 196B(2) or (11) … that upholds the hypothesis". As mentioned, a Statement of Principles has been determined under s 196B(2) in relation to malignant neoplasm of the stomach. A major issue concerns its effect in this case.

The applicant's submissions 28 At the commencement of the hearing, counsel for the applicant, Mr Craig Colborne, obtained leave to file an Amended Notice of Appeal that identified four grounds of appeal, one of which was further amended during submissions. The final grounds were as follows: "4.1 The Tribunal failed to identify the facts raised by the material before it, which supported the hypothesis, and then consider if the hypothesis was reasonable if those facts were true. 4.2 The Tribunal erred by finding that a hypothesis that relied on a series of assumptions or hypothesis was unreasonable. 4.3 The Tribunal erred by confining itself to a consideration of the clinical history and failing to take into account the expert opinions before it. 4.4 On the evidence, it was not open to the Tribunal to find that the facts did not point to the veteran contracting Helicobacter pylori in Moratai and to the primary cancer being in the stomach." 29 In his submissions, Mr Colborne referred to Bushell and Byrnes and also to a decision of a Full Court of this Court (Neaves, Einfeld and Beazley JJ), Lowerson v Repatriation Commission (1994) 50 FCR 252, in which those decisions were applied. Lowerson pre-dated the commencement of s 120A. At 260 Einfeld and Beazley JJ commented: "… the subsection requires the decision-maker to assume the raised facts to be true for the purpose of determining whether the hypothesis is reasonable, in the sense that it is not 'obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous': East v Repatriation Commission (1987) 16 FCR 517 at 532. That is why the subsection does not speak of any standard of proof or satisfaction for the decision-maker to find that the raised facts exist". 30 Mr Colborne referred to the evidence placed before the Tribunal by Dr Katelaris and his opinion that it was plausible that Mr Fuss acquired H pylori infection during his service in south-east Asia. Mr Colborne pointed out no medical witness had suggested the presence of H pylori could be excluded. He made similar observations about the step in the hypothesis that assumes Mr Fuss' primary carcinoma was gastric adeno-carcinoma. A number of medical witnesses had agreed this was a possibility, although there was no positive evidence to that effect. The gastroenterologist called to give evidence to the Tribunal on behalf of the Commission thought it "hard to say (Mr Fuss) had a stomach cancer", and it was unlikely on the balance of probabilities; but he said he could not exclude it. 31 Mr Colborne submitted the Tribunal's central error was in failing to distinguish between the question whether the facts assumed in the hypothesis were established and the question whether the hypothesis was reasonable. He said it was erroneous for the Tribunal to hold a hypothesis to be unreasonable simply because it depended upon a prior hypothesis. 32 Mr Colborne also analysed the evidence for the purpose of submitting it was not open to the Tribunal to find the facts did not point to Mr Fuss contracting H pylori in Morotai and to the primary cancer being in the stomach. He submitted the matter should be remitted to the Tribunal for redetermination.

The respondent's submission 33 Counsel for the respondent, Mr Ian Butcher, submitted the Tribunal did not err in law. He drew attention to the statement in the SoP that one of the stipulated factors "must as a minimum exist" for a hypothesis concerning malignant neoplasm of the stomach to be regarded as reasonable. Mr Butcher said: "The authorities have long established that the Tribunal must consider all of the material in determining the question of whether the material points to 'raised facts' which support the hypothesis." (Original emphasis) 34 After referring to several authorities, Mr Butcher said: "Notwithstanding the language which may have been used by the Tribunal in this case, it is clear that the Tribunal considered that the evidence before it did not point to the 'raised facts' contended for by the Applicant. The choice of words used by the Tribunal in paragraph 40 of its findings - 'it involves a series of hypotheses which give rise to the alternative hypotheses' - shows that it felt it was being asked to make a series of assumptions. As stated above, although one passage in Lowerson may suggest that the Tribunal must do this, a series of recent authorities make it quite clear that the Tribunal must examine the evidence and make some finding as to whether the evidence points to those alleged raised facts." (Original emphasis) 35 Mr Butcher referred to Deledio. He also mentioned five first instance decisions which, he suggested, supported the proposition that, for a hypothesis to be accepted as reasonable, each element in the hypothesis must be supported by objective evidence. The five decisions are Repatriation Commission v Gosewinckel [1999] FCA 1273 (Weinberg J), Connors v Repatriation Commission [2000] FCA 783; 59 ALD 61 (Kenny J), Harris v Repatriation Commission [2000] FCA 873; 62 ALD 174 (Finn J), Mason v Repatriation Commission [2000] FCA 1409 (Weinberg J) and Cooke v Repatriation Commission [2000] FCA 1756 (Weinberg J). Harris was affirmed on appeal: [2000] FCA 1687, 36 Mr Butcher argued that, in the present case, the Tribunal comprehensively examined the evidence (including the expert evidence) and concluded "there was no material before it that would point to the contraction of H pylori infection" and "there was nothing in the material which would point to the stomach as the primary site of the adenocarcinoma".

Deledio 37 As the Full Court decision in Deledio was mentioned in the Tribunal's reasons relating to this case, and was the subject of submissions put to me by both counsel, it is appropriate to consider what the case decided. 38 Mrs Deledio made a claim in respect of the death of her husband from metastatic carcinoma of the prostate. She argued the death was a consequence of a high fat diet the veteran commenced during his military service and continued for the remainder of his life. The Tribunal dismissed the claim but Heerey J allowed an appeal from the Tribunal's decision and remitted the matter for redetermination: see Deledio v Repatriation Commission (1997) 25 AAR 396; 47 ALD 261. 39 Although the case went later to a Full Court, Heerey J's judgment remains important. It contains a comprehensive history of Australian repatriation legislation and a lucid exposition of the policies that have informed that legislation from time to time. 40 At 397; 262 Heerey J said: "Australian repatriation legislation has long contained provisions for the resolution of claims unusually favourably to claimants, as compared with claims for other government benefits." He said (at 398; 263) that "if the 1994 amendments had the effect for which the respondent Commission contends in the present case, the onus of proof has now been put on claimants". He commented this "would be a philosophical change of a most fundamental kind". He thought Parliament had no such intention; rather, "the amendments were directed towards a much more limited, albeit important, aspect of the repatriation benefits system, that is, the use of medical/scientific evidence and the degree of professional acceptance such evidence ought to have before it is relied on by a decision-maker". 41 In recounting the history of Australian repatriation legislation, Heerey J paid particular attention to the 1994 amendments. He pointed out the then government made a decision to reject the recommendation of an advisory committee, the Baume committee, that it abandon the reverse criminal standard of proof. He also noted (at 404;268) the explanation of the new s 120A given to Parliament by the then responsible Minister: "The bill will, in effect, define by reference to such statements of principles the concept of 'reasonable hypothesis', as it appears in s 120(3) of the Veterans' Entitlement Act. The result will be that a medical hypothesis linking particular kinds of injury, disease or death with war service that does not have a sound medical-scientific base will no longer be sufficient to constitute a 'reasonable hypothesis'. This will be a matter solely for the expert medical authority to determine. I stress that the opinion of a single medical expert may still be sufficient to constitute a 'reasonable hypothesis', provided that such opinion has a sound medical-scientific base, as determined by the authority." 42 Under the heading "How does a statement of principles work?" at 410-412; 273-275 Heerey J said: "… the 1994 amendments left intact the twin pillars of (i) the reverse onus of proof beyond reasonable doubt and (ii) the reasonable hypothesis. Accordingly, the new regime of SoPs has to be given an operation consistent with s 120(1) and (3) as expounded by the High Court in Bushell and Byrnes. In carrying out its functions under s 196B(2) and (3) the RMA is dealing with scientific fact, that is to say a rule or proposition of universal application which explains or predicts natural phenomena. This is to be distinguished from fact in the legal sense, a specific event or circumstance existing at a given point in space and time. Obviously enough, in determining an SoP the RMA is not concerned with the individual circumstances of a particular veteran. The SoP operates in the discourse of hypothesis - a "tentative answer to a problem under study" (Hempel, Philosophy of Natural Science, 1966, p 17). … A striking feature of Bushell, and the more so when one looks at Adamcik on which Bushell relied, is the lack of reverence for accepted wisdom in medical circles. That may have something to do with the fact that the generation of Australian lawyers now on the Bench practised in an era where a prominent genre of civil litigation was the damages claim arising out of accident or death on the roads or in the workplace. Such experience is perhaps likely to inculcate an attitude of caution towards claims by medical experts to infallibility. In contrast, American courts adopted a "general acceptance test" which laid down that, to be admissible, expert opinion evidence needed to conform to methods and principles which had received widespread acceptance in a particular field of knowledge: Frye v United States 293 F 1013 (1923). ... The concept of 'sound medical-scientific evidence' introduced by the 1994 amendments is a standard not unlike the Frye test. In this respect at least, the Parliament has accepted the Baume Committee's criticism of 'doctor shopping'. If an SoP applies to the particular kind of injury, disease or death in question, a hypothesis will no longer satisfy the test of reasonableness merely by having some expert evidence to support the medical-scientific aspects of the hypothesis. To illustrate by a variation on the facts of the present case, let it be assumed that it could only be established that the veteran increased his animal fat consumption by 20 per cent to 50 gm/day for ten years. Dr X, an appropriately qualified specialist, is called to say that in his opinion that level of consumption could be sufficient to cause malignant neoplasm of the prostate. The Commission calls three of the country's leading specialists who vehemently disagree. They say that an increase by at least 40 per cent to at least 70 gm/day for at least twenty years is the minimum required before fat intake can play any part in the development of this cancer. Under Bushell, the hypothesis is nevertheless reasonable. Under the SoP regime it is not. Indeed the issue would probably not arise. Unless the hypothesis was consistent with a 40 per cent 70 gm/day twenty year intake there would be no point running the case. But it is necessary to repeat that the SoP has no function in relation to the proof or disproof (under s 120(1)) of the particular facts of a veteran's case. The SoPs function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent - so that the SoP can 'uphold' the hypothesis. In the words of the Minister (Hansard, 9 June 1994, at 1808) the SoPs were intended to 'provide the template within which the individual claims will be determined'. Put another way, the SoP is a subset of proved (Bushell at 414) or known (Byrnes at 571) scientific fact. Where an SoP is applicable, it is a statute-backed declaration of what is proved or known scientific fact. Therefore when s 196B(2) says a factor 'must... exist' and 'must be related to service', it is not interfering with the functions of s 120(3) and (1). On the contrary, the RMA is to identify the minimum factors which can connect the particular kind of injury etc with the circumstances of the particular kind of service (operational etc). If there is more than one factor the RMA is to determine which of them (or whether all of them) must be related to the circumstances of the service ... The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is: (i) contrary to proved or known scientific facts, (ii) obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or (iii) (since 1994) inconsistent with (not upheld by) an applicable SoP. If the hypothesis is reasonable the claim will succeed unless: (iv) one or more facts necessary to support it are disproved beyond reasonable doubt; or (v) the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt. At no stage is there an onus of proof on the claimant. If one of the disputed facts happens also to be a component of an SoP then the Commission must disprove that fact beyond reasonable doubt, just like any other relevant fact. For example, in the present case the factors in the SoP include 70 gm/day consumption for at least 20 years. As it happens there was no dispute in the present case that the veteran's intake in fact was of this order. But if the Commission were to deny this, then s 120(1) requires the Commission to prove beyond reasonable doubt that the veteran's intake was in fact less than the SoP level. Put another way, the SoP system does not have the effect that some of the facts relevant to a claim, viz those facts which coincide with factors set out in an SoP, have to be proved by the claimant. Such a view would be inconsistent with the retention of s 120(1) and (3) in the face of the Baume Committee's recommendations. Still less do the 1994 amendments have the effect, as happened in the present case, that the claimant has to prove all the facts raised by the hypothesis." (Original emphasis) 43 The Full Court (Beaumont, Hill and O'Connor JJ) agreed with Heerey J's statement about there being no onus of proof on the claimant and that, if one of the disputed facts happens also to be a component of an SoP, "then the Commission must disprove that fact beyond reasonable doubt, just like any other relevant fact"" 44 A significant aspect of the Full Court's decision in Deledio is its recognition (at 97) of the continuing authority of Repatriation Commission v Bey (1997) 79 FCR 364.

Conclusions about the legal requirement 45 I do not find it necessary to analyse the numerous decisions following Deledio. It seems to me the central issue in this case is resolved by Bey. The Full Court that heard that appeal comprised five members, apparently because it was said to raise an inconsistency between two earlier Full Court decisions, East v Repatriation Commission (1987) 16 FCR 517 and Cooke v Repatriation Commission (1997) 45 ALD 205. Two judgments were delivered in Bey: one being that of Northrop, Sundberg, Marshall and Merkel JJ and the other that of RD Nicholson J. Both judgments expressed a similar view upon the critical question: whether a "mere possibility" of a causal connection between the veteran's operational service and his or her injury, disease or death may be sufficient to constitute a "reasonable hypothesis" within the meaning of s 120(3) of the Veterans' Entitlements Act. 46 The majority judgment set out the history of s 120(3). It noted (at 371) a statement made by the Full Court (Jenkinson, Neaves and Wilcox JJ) in East at 533: "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." 47 In Bey at 372, the majority judges expressed the opinion that this statement was not inconsistent with the statements of principle in Bushell and Byrnes. Their Honours went on (at 372-373): "any doubt that attends the status of East as a correct exposition of the law relating to s 120(3) should be dispelled. This Court re-states the position established by East, Bushell and Byrnes. 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. That understanding of the expression gives force to the word 'reasonable', is strongly supported by the history of the relevant provisions, and accords with the intention appearing in the Minister's second reading speech and with authority." 48 R D Nicholson J agreed with the reasons for judgment of Northrop, Sundberg, Marshall and Merkel JJ but he deprecated use of the term "mere possibility". He said (at 376) it is preferable to approach the application of s 120(3) "by searching for 'material' which 'raises' a reasonable hypothesis". His Honour went on: "There may be circumstances in which evidence of an hypothesis by a suitably qualified expert founded upon some grounds whether in medical literature or experience may adduce evidence being material from which a reasonable hypothesis can be found to arise. Such evidence may be capable of description as being 'a mere possibility', yet may raise an hypothesis within the principles stated in Bushell and Byrne. That is why the general description of evidence as 'a mere possibility' is not helpful in that it clouds the distinction between an hypothesis raised by the material and an hypothesis of which there is evidence that it cannot be excluded but which is not otherwise raised." 49 No Statement of Principles was considered in Bey. However, this does not affect its continuing authority: see Deledio at 97. The principle stated in East, and upheld in Bey, may be applied to the situation arising out of the enactment of s 120A of the Act by saying that, for a hypothesis to be a "reasonable hypothesis", within the meaning of s 120(3) of the Act, the factors specified in any relevant Statement of Principles must be pointed to by the facts before the Commission (or Tribunal), even though not proved upon the balance of probabilities.

Did the Tribunal apply the correct test? 50 This brings me to the final question: did the Tribunal, in this case, apply the correct test? In order to answer that question, it is necessary to consider the Tribunal's handling of each of the "fundamental elements" of Dr Katelaris' hypothesis. 51 In relation to the first element - infection with Helicobacter pylori while serving at Morotai - the Tribunal noted (see para 14 above) "the absence of particular facts in the material which of themselves would allow the Tribunal to establishthis element of the hypothesis". The Tribunal said: "For this element of the hypothesis to be established, the Tribunal would have to rely upon a series of assumptions … As a consequence, the Tribunal concludes that this element of the hypothesis is too remote and/or too tenuous." 52 I have emphasised the Tribunal's repeated use of the word "establish". It seems the Tribunal was asking itself whether there was material that made good, or proved the correctness of, the first element of the hypothesis. Although the Tribunal accepted that Mr Fuss served at Morotai, and Dr Katelaris' evidence concerning the general relationship between low socio-economic conditions and H pylori infection, it was disturbed by the absence of "particular facts" to "establish" the first element. 53 The Tribunal also used the word "establish" in connection with the second element of the hypothesis: that the stomach was the primary site of the adenocarcinoma: see para 15 above. 54 In its final conclusion (see para 16 above), the Tribunal said "the hypothesis … is not raised (or pointed to) by the material before the Tribunal". This conclusion states the correct test. However, the Tribunal said it reached this result "for the reasons nominated in this decision"; that is, because neither of the two fundamental elements was "established" by the material. 55 I am conscious of the principle that the reasons for decision of an administrative decision-maker (including the Administrative Appeals Tribunal) "are not to be construed minutely and finely with an eye keenly attuned to the perception of error": see Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 and Minister for Immigration and Ethic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. However, it seems to me the present Tribunal's repeated use of the word "establish" reflects an error of substance, not merely loose expression of a permissible approach. I say this because it is apparent that the hypothesis advanced by Dr Katelaris was rejected, not because it was "fanciful or unreal" (to use the language of East) or because it was inconsistent with known facts, but because the Tribunal was not satisfied about the factual foundation for the hypothesis. In requiring to be affirmatively satisfied of the truth of the facts assumed by Dr Katelaris, the Tribunal erred in law.

Disposition 56 Although I think the Tribunal's decision reflects error of law, and must therefore be set aside, I do not suggest the Tribunal was bound to uphold Mrs Fuss' appeal. The question whether material raises a reasonable hypothesis, for the purposes of s 120(3) of the Veterans' Entitlements Act, is a question of fact: see Repatriation Commission v Owens (1996) 70 ALJR 904, applied in Bey at 373. It is conceivable that, properly evaluating the available material and without requiring critical assumptions to be "established", the Tribunal will nevertheless find it insufficient to indicate the existence of a reasonable hypothesis. But that is a matter for determination by the Tribunal, not the Court. I express no view about it. 57 The decision of the Tribunal must be set aside and the matter remitted to the Tribunal for further hearing and determination according to law. The Repatriation Commission must pay the costs incurred by the applicant in connection with the proceeding. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox .

Associate: Dated: 2 November 2001 Counsel for the Applicant: Mr Craig Colborne

Solicitor for the Applicant: Legal Aid Commission of New South Wales

Solicitor for the Respondent: Australian Government Solicitor

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Cases Cited (15)