Veterans' Affairs - alleged causal nexus between war service and veteran's incapacity - construction of s.120(3) Veterans' Entitlements Act 1986 - meaning of "reasonable hypothesis" - whether facts before Tribunal raised a reasonable hypothesis - whether Tribunal made error of law.

Veterans' Entitlements Act 1986, s.120(1) and (3)

Mr I. Sanderson

Solicitors for the Appellant: Vandenberg Reid Pappas and MacDonald

Counsel for the Respondent: Mr A. Emmett QC with Ms R.M. Henderson

Solicitors for the Respondent: Australian Government Solicitor

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

I agree with Burchett J. that, for the reasons he gives, the appeal should be dismissed.

2. I would only wish to refer to one additional matter. In his reasons, the primary judge said:

"Because of the evidence of Dr Rowden in particular, this

was clearly a case where a reasonable hypothesis of nexus

was raised. The question is whether on all the material

before the Tribunal it was maintained or dispelled. If the

applicant's argument were correct, one report from one

medical practitioner, even a general practitioner with

little specialised knowledge of the subject matter,

supporting the necessary causal nexus would be sufficient to

conclude the matter in the veteran's favour even if there

were very many contrary more expert opinions. If this were

all that was required, such matters could all be finalised

administratively without the need for multiple appeals or

reviews. Judicial or quasi-judicial considerations of

evidence would be completely unnecessary. Such an

interpretation would also encourage 'doctor shopping' until

a favourable opinion could be obtained. I do not think that

the simple scheme apparently desired by the Parliament was

intended to be that 'simple'.

Here there were effectively opposing views from two

eminently qualified experts. Looked at objectively, each

raised a reasonable fully argued hypothesis about the nexus.

Either could have been accepted."

3. As Burchett J. has pointed out, the Tribunal put the matter differently, saying:

"17. All I can find in the circumstances is that there is no more

than a possibility of a causal connection between the applicant's

spondylosis and his service. Hence, a reasonable hypothesis of

such a connection has not been raised."

4. As I would read the Tribunal's reasoning, it was not of the view that two reasonable hypotheses had been raised. On the contrary, the Tribunal was of the opinion that the facts did not support, on any reasonable basis, the hypothesis contended for by the appellant. It was on this footing that the claim failed before the Tribunal and not on the basis, as the judge appeared to think, of concluding which of two reasonable hypotheses was more likely to be correct. But, as has been said, for the reasons given by Burchett J., I am of the opinion that the Tribunal made no error of law in rejecting the claim.

This appeal turns on whether it was open to the Administrative Appeals Tribunal to form the opinion, within the meaning of s. 120(3) of the Veterans' Entitlements Act 1986, that the material before it did not raise a reasonable hypothesis connecting the appellant's disease of cervical and thoracic spondylosis with the circumstances of his operational service. If the finding was open, it was of course for the Tribunal to determine whether it should be made, and no appeal lies from the decision of fact.

2. The circumstances are set out in the Tribunal's decision. Whilst Mr Byrnes was serving in the Royal Australian Naval Depot at Townsville in January 1943, he ricked his neck diving from a diving board in a tidal swimming pool. The tide had apparently ebbed so that the water was too shallow for the dive which Mr Byrnes attempted and he struck his head on the bottom. It is not suggested that any head injury resulted, but Mr Byrnes reported to the sick birth attendant at the depot, as he said, "to get some liniment or something to rub on (his neck)". The sick birth attendant decided that Mr Byrnes should go up to Townsville General Hospital where he was admitted for observation. Although Mr Byrnes said he was there "for four or five days as I recall", the records in fact show that he was admitted to hospital for two days from 17 January to 19 January 1943. Mr Byrnes did not suggest that he received any treatment in hospital other than "liniments and things like that to relieve the pain". On discharge from hospital, he returned to his normal duties at the depot. However, he gave evidence that he continued to feel pain in the neck "for some weeks". On two subsequent occasions, Mr Byrnes, while serving as a stoker on naval ships during the war, sustained minor blows to the back of the head and neck, but the Tribunal found that these incidents were "trivial", and it is not suggested that this finding cannot be supported. The argument in the case was concentrated upon the diving incident.

3. Mr Byrnes's naval records make it plain that he suffered from a number of complaints during the period of his service, and in particular from a fairly severe anxiety state. They do not reveal any complaint in respect of his cervical or thoracic spine, and no abnormality was detected in these areas by the medical examiner at the time of his discharge. At the time of the diving incident, Mr Byrnes was 20 years of age. After the war, and until his retirement at the age of 60, he was employed in the New South Wales State Railway, initially as an engine cleaner for a couple of years, for about 17 years as an electric train driver and thereafter in a clerical position. In civilian life, Mr Byrnes first sought treatment for his neck condition in 1975. His sick leave records do not show any previous absence related to any complaint of neck pain or thoracic spinal pain.

4. Mr Byrnes was seen, apparently on reference from a firm of solicitors, by an orthopaedic surgeon, Dr N. Rowden, on 24 July 1987. The purpose of the consultation was to investigate any reasonable link between his war service and his neck condition. Dr Rowden did not express any conclusion that Mr Byrnes's neck condition was in fact due to his war service, but he did state: "I believe there is a reasonable hypothesis of a link between Mr Byrnes('s) war service and the condition of cervical spondylosis which he presently suffers." In oral evidence given to the Administrative Appeals Tribunal, Dr Rowden repeated this view. He said: "I think it would be very wrong to state categorically that there is no relationship between this injury during war service - I think that would be very wrong." He was referring to the diving injury which he described as "a ligamentous injury to the neck and perhaps an injury to the disc, but this is all hypothetical, of course". He thought a ligamentous condition had been caused, and "that may well have been the initiating factor, if I can put it that way, to an early degenerative process commencing, and that is quite a reasonable hypothesis." He said:

"(I)f there is an increase in movement of the cervical spine

caused by ligamentous laxity, then early degenerative changes

occur, and that is well shown in people that have a so-called

whip-lash injury in car accidents. There are a number of people

who have early onset of degenerative changes following that, and

that depends on the severity of the injury obviously."

At another point, he said: "Now, we do not know the extent of ligamentous injury that this man received in that initial neck injury."

5. As against the evidence of Dr Rowden, the Tribunal had to consider the evidence of another orthopaedic surgeon, Dr Whitty. He said: "From the description of the injuries, I did not think they were likely to be severe enough, and also ... had they been severe I would have expected some bony changes that much later which (sic.) were not present on his x-rays." He was referring to x-rays taken in 1981, the report of which showed no abnormality in either the cervical or thoracic spine. Dr Whitty was extensively cross-examined, and Dr Rowden's hypothesis was put to him. He commented that Dr Rowden "does not state the evidence that he draws on to come to his opinion". He also said:

"I think it is extremely unlikely. ... I think it is a

hypothesis. Now I think it is an unlikely hypothesis. I would

say in terms of percentages that it is five per cent or less. ...

I mean, I guess I would say I think it is unreasonable in the fact

that I think it is a twenty to one outsider."

6. The Tribunal's reasons include reference to the lack of complaint of any problem with the neck or shoulders at the time of discharge, although Mr Byrnes had other complaints, and was diagnosed at that time as having an anxiety state; the failure to seek medical advice concerning any neck problem until 1975, although Mr Byrnes said his condition had forced him to give up tennis and golf about 1967; the normal x-ray in 1981, followed by minor changes revealed in an x-ray in 1987; Dr Whitty's opinion concerning the hypothesis put forward by Dr Rowden; and the lack of severity of any injury in January 1943, as indicated by the absence of any significant treatment at that time. The Tribunal noted that "the great bulk of the evidence" strongly suggested there had not been any severe injuries during Mr Byrnes's service, and added: "(D)espite the existence of an anxiety state, Mr Byrnes did not complain of nor seek medical treatment for his spinal problems either upon discharge or for many years thereafter." The Tribunal's conclusion was:

"All I can find in the circumstances is that there is no more than

a possibility of a causal connection between the applicant's

spondylosis and his service. Hence, a reasonable hypothesis of

such a connection has not been raised."

7. In Repatriation Commission v Bushell (Davies, Morling and Neaves JJ., unreported, 3 May 1991), Davies J. said:

"A reasonable hypothesis will ordinarily be established if a

responsible medical practitioner, speaking within the ambit of his

expertise, and after considering the particular facts of the

veteran's case, puts forward a theory of a likely, in the sense of

a realistically possible, not fanciful, causal connection between

war service and the veteran's disability."

Yet, in that case, the full court held it was open to the Tribunal to find that an hypothesis of a connection between stress and an applicant's hypertension was not a reasonable hypothesis, despite the fact some medical experts thought it was. There was other medical evidence denying a reasonable hypothesis linking hypertension with the particular veteran's experience of stress. Bushell was admittedly a border-line case. However, in the present case, the only medical witness to support a finding in favour of the appellant went no further than to assert a reasonable hypothesis. He did not claim causation in fact. Of course, whether the hypothesis was or was not reasonable was the very question the Tribunal had to decide. In making a decision, it was entitled to prefer the evidence of Dr Whitty to the effect that the hypothesis, as applied by Dr Rowden to the circumstances in evidence, was not reasonable, and represented no more than an outside chance. The Tribunal's finding was not at all inconsistent with the settled interpretation of s. 120(3), according to which a reasonable hypothesis need not reach, nor even approach, a probability although it must achieve a degree of credibility or acceptability.

8. Dr Whitty did not dispute that a severe ligamentous injury, producing an abnormal condition of the cervical spine, could predispose a man to spondylosis. But he insisted, and the Tribunal was entitled to accept, that if the diving incident described by Mr Byrnes had produced a condition of that character, much more severe consequences would have become apparent, and at a much earlier date, than had in fact ensued. Since Dr Rowden's hypothesis depended upon the assumption of an injury of some severity in 1943, an acceptance of Dr Whitty's evidence would necessarily leave Dr Rowden's hypothesis without any foundation. It would just not be raised by the material in evidence. It would remain a possibility only in the sense that, if the full facts are not known to explain an occurrence, almost any explanation is possible. An abstract possibility of that kind is not sufficient to prohibit a finding that a reasonable hypothesis is not raised by the circumstances.

9. For these reasons, the Tribunal did not err in its conclusion, and the learned primary judge correctly dismissed Mr Byrnes's appeal. His further appeal to this full court must also be dismissed with costs.

This is an appeal from a judgment of a judge of this Court dismissing an appeal from a decision of the Administrative Appeals Tribunal ("the Tribunal") which affirmed a decision of the Veterans' Review Board ("the Board") disallowing the appellant's claim for a pension under the Repatriation Act 1920.

2. The Board's decision was made on 10 April 1986. The Repatriation Act 1920 was repealed by the Veterans' Entitlements Act 1986 ("the Act") on 22 May 1986. When the Tribunal made its decision on 15 February 1988 it applied the provisions of the Act as required by sub-s.19(2) of the Veterans' Entitlements (Transitional Provisions and Consequential Amendments) Act 1986.

3. The appellant is a veteran as defined in sub-s.5(1) of the Act, being a person who, by virtue of para.7(1)(a) of the Act, is taken to have rendered "eligible war service", being a person who, by virtue of para.6(1)(a) of the Act, is to be taken to have rendered "operational service" as a member of the Defence Force by rendering continuous full-time service outside Australia during a war to which the Act applies.

4. By s.13 of the Act the Commonwealth is liable to pay a pension to a veteran who has become incapacitated from a war-caused injury or a war-caused disease.

5. Paragraph (9)(1)(a) of the Act provides that an injury suffered by a veteran or a disease contracted by a veteran shall be taken to be a war-caused injury or a war-caused disease if the injury or disease resulted from an occurrence that happened while the veteran was rendering operational service, but not otherwise.

6. By sub-s.120(1) of the Act the Commission (or a Tribunal), in considering a claim by a veteran for a pension in respect of incapacity from a disease, is directed to determine that the disease is a war-caused disease unless it is satisfied beyond reasonable doubt that there was no sufficent ground for making that determination.

7. Having regard to the provisions of para.9(1)(a) of the Act the "sufficient ground" referred to in sub-s.120(1) must refer to the question whether "the injury or disease resulted from an occurrence that happened while the veteran was rendering operational service" as stipulated in that paragraph.

8. Sub-section 120(1) is qualified by sub-s.120(3) which directs that the Commission is to be satisfied beyond reasonable doubt that there is no sufficient ground for determining that a disease was a war-caused disease 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 ... disease ... with the circumstances of the particular service rendered by the person."

"...shall take into account any difficulties that,

for any reason, lie in the way of ascertaining the

existence of any fact, matter, cause or

circumstance, including any reason attributable to:

(i) the effects of the passage of

time, including the effect of

the passage of time on the

availability of witnesses; and

(ii) the absence of, or a

deficiency in, relevant

official records, including an

absence or deficiency

resulting from the fact that

an occurrence that happened

during the service of a

veteran, or of a member of the

Defence Force or of a

Peacekeeping Force, as defined

by subsection 68(1), was not

reported to the appropriate authorities."

10. Sub-section 120(5) stipulates however, that nothing in s.120 or in any other provision of the Act entitles the Commission to presume that a disease contracted by a person is a war-caused disease.

11. On 26 November 1980 the appellant, then aged 57, claimed a pension for a disability described as a "cervic(al) and thoracic condition". As argued before this Court the appellant's claim was in respect of incapacity from a war-caused disease, in particular, cervical spondylosis, a condition involving progressive degeneration of the cervical spine.

12. At the time of his application for a pension the appellant was employed with the New South Wales State Rail Authority and had been so employed since 1948. In his application the appellant stated that over some years he had lost time at work because of back and neck pains and had commenced wearing a neck brace to relieve neck pain. He also stated that his disability had caused him to give up competitive golf and social tennis some years before.

13. The following summary in his Honour's reasons sets out the circumstances upon which the appellant relied to support his claim:

"The circumstances of this case are that the

applicant (appellant) served in the Army within

Australia from 18 December 1941 to 31 August 1942,

and in the Navy outside Australia from 7 September

1942 to 21 September 1945. In February 1943 his

neck was injured when he dived into shallow water

while serving in Townsville. After some days'

hospitalisation he returned to duty with a painful

neck. In 1945, while he was working as a stoker on

a ship in the Coral Sea, a lump of coal came off a

stack and hit him across the back of the head and

neck. He was groggy and he suffered 'terrible

pain' in his shoulders and neck. In 1945 the

applicant (appellant) fell against a bulkhead of

the same ship again hitting his head and shoulders.

Little or no treatment followed the second and

third incidents. He now has cervical and thoracic

spondylosis which he claims are due to the three

incidents and to working in confined spaces on

ships. When he was discharged from the Navy, no

complaint of any problem with his neck or shoulders

was recorded. Although the applicant (appellant)

says that he suffered from significant pain in the

ensuing years, and he had to give up tennis and

golf around 1967, he did not seek medical attention

for this neck disability until 1975."

14. It was not contested that the diving incident which his Honour stated occurred in February 1943 occurred in January 1943.

15. In July 1981 the appellant's claim was referred to an orthopaedic surgeon, Dr J. Whitty, for report. In that report Dr Whitty noted that x-rays taken in January 1981 showed minimal changes to the cervical spine and offered the opinion that had there been a severe injury to the spine he "would have expected there to be radiological changes after this time". Dr Whitty stated that it was very unlikely that the injuries referred to by the appellant had any part to play in the causation of his disability of cervical spondylosis.

16. On 2 November 1981 the Repatriation Board refused the appellant's claim. The Repatriation Board noted that according to the appellant's service record he had suffered from cervical myositis between 17 January 1943 and 19 January 1943. It stated that the cause of that inflammation of the neck muscles was unknown. It was noted that the appellant had claimed to have suffered a neck injury in 1943 as a result of a dive into shallow water but the Repatriation Board stated that there was no record of that injury in the appellant's service documents and apparently it did not connect that claim of injury with the cervical myositis diagnosed upon the appellant's admission to Townsville Hospital on 17 January 1943. It was accepted by the Repatriation Board that it had been established that the appellant was suffering from the disease cervical spondylosis, but it was satisfied beyond reasonable doubt that there were "insufficient grounds" to allow the appellant's claim that the disease was a "service-related" disease.

17. On 22 December 1981 the appellant's wife, who had been employed as a telephonist at the Townsville Hospital in 1943 and had met the appellant upon his admission to that hospital, declared that the appellant had been "admitted to the hospital suffering from an injured neck". Mrs Byrnes and the appellant were married on 26 June 1943.

18. On 30 December 1981 the appellant "appealed" to the Commission against the determination of the Repatriation Board. On 28 April 1982 the Commission stated that it was satisfied beyond reasonable doubt that there were "insufficient grounds for allowing the appeal" and, therefore, disallowed it.

19. On 28 November 1984 the appellant applied to have the Commission's decision reviewed by the Board. In that application for review the appellant informed the Board that he had suffered an injury to his neck in 1943 when he had dived off a springboard into a swimming pool and had struck his head and shoulders on the bottom of the pool and had spent some days in Townsville Hospital as a result of that injury. The appellant gave evidence to the Board describing the incident and advised that it was a day or two after the incident occurred, and as a result of continued soreness in his neck, that he was taken by ambulance to Townsville Hospital and admitted for observation for several days.

20. In its reasons for the decision of 10 April 1986 the Board accepted that it was likely that the recorded admission to Townsville Hospital for a condition of cervical myositis related to the diving incident described by the appellant. The Board noted that the appellant had informed them that after the diving incident he had lived with pain in his neck and surrounding area. He had not sought medical treatment for it until the late 1970s but had used a ray lamp to alleviate the pain. The Board also noted that on medical examination in December 1980 the appellant had stated that he had suffered from almost constant pain in the back of the neck radiating to the shoulders and upper dorsal region for the previous four to five years.

21. When the Tribunal reviewed the decision of the Board in November 1987 Byrnes gave further oral evidence to the Tribunal. The appellant described to the Tribunal how he had dived off a diving board and struck his head on the bottom of the pool. He said he had "ricked" his neck and suffered pain. He had reported the matter to the sick-berth attendant when he attended to obtain some liniment to rub on the neck to relieve the pain. The attendant had decided that he should be taken to Townsville Hospital for examination where he was admitted for observation over several days. After it was decided that no bony injury had been suffered he was discharged from hospital to resume normal duties. The appellant said that whilst in hospital he had suffered pain that was "pretty severe" and he had continued to have pain in his neck thereafter. He had first sought medical treatment for his neck condition in about 1975 when he was referred to a physiotherapist for treatment. The appellant's account was not challenged in cross-examination.

22. The Tribunal received oral evidence from Dr Whitty who stated that he did not consider the injury described by the appellant to be severe enough to initiate the development of cervical spondylosis although he agreed that trauma to the cervical spine could cause the onset of the disease. It was Dr Whitty's view that he would have expected to find some discernible bony changes or degenerative changes in the joints of the cervical spine shortly after that and they were not revealed in the radiological examination conducted in January 1981. He agreed, however, that radiological examination in July 1987 showing early spondylosis in the cervical spine did not mean that the spondylosis was of recent origin, and also agreed that a description "cervical myositis" was consistent with a diagnosis of injury to the spine following trauma.

23. Dr Whitty said that he had attached less significance to the diving incident because the appellant had reported to sick bay rather than being taken directly to hospital. He acknowledged that it was a "value judgement" on his part as to how much damage had been caused in that incident. He had not taken a detailed history from the appellant either as to historical events or symptoms experienced. He agreed that if the appellant had experienced pain in his neck since "the war" it would be consistent with spondylosis. Dr Whitty conceded that he could not exclude the availability of an opposing opinion attributing the onset of the disease to the diving incident. However, because of the absence of manifestation of earlier bony or degenerative changes in the joints and bones of the cervical spine and by attributing less significance to the diving incident he considered the opposing view to be less likely to be true than the view he had expressed, namely, that the disease was the result of the aging process.

24. At the hearing before the Tribunal the appellant presented additional material in support of his case by adducing oral evidence and a report from an orthopaedic surgeon, Dr Rowden.

25. Although in some respects part of the surgeon's evidence was rendered less helpful by being expressed as an opinion as to the reasonableness of an hypothesis as to the cause of the appellant's disease, the question to be answered by the Tribunal, the totality of his evidence exposed an opinion as to the possible cause of the onset of the disease and the reasons and facts relied upon for that opinion.

26. Dr Rowden accepted that the diving incident described by the appellant was likely to have been a significant injury. The diagnosis of cervical myositis indicated that a ligamentous injury had been suffered and it was possible that the trauma described may have caused a disc injury as well. Dr Rowden gave the example of "whip-lash" injuries suffered in motor vehicle accidents which are now well known to be sufficient to cause instability in that area of the spine. Dr Rowden pointed out that the diving mishap described by the appellant was a type of occurrence which often occasioned fractures, dislocation, paraplegia and death. Severe ligamentous injury to the cervical spine was a lesser consequence which would not be revealed by radiological examination notwithstanding that the patient would be left with a very painful neck. Dr Rowden stated that it was his opinion that the described history of the injury indicated that the appellant had sustained a ligamentous injury which had occasioned the appellant regular pain thereafter. In Dr Rowden's opinion the incident occasioned the "fairly premature" onset of significant neck pain and he regarded it as very significant that the pain had caused the appellant to give up golf and tennis by 1967 when the appellant was 40 years of age. It was Dr Rowden's opinion that spinal changes observable in radiological examinations were not of major importance and a patient could be suffering from spondylosis and significant neck or back pain when no abnormalities were displayed on such examination. He said he was firmly of the view that the type of ligamentous injury described was linked with the development of the cervical spondylosis. He stated that abnormal movements in the cervical spine which resulted from ligamentous laxity led to early degenerative changes as a reaction to that abnormal movement. No attack was made upon Dr Rowden's qualifications nor was his evidence subjected to any serious challenge by cross-examination.

27. Both medical practitioners accepted as a medical fact that trauma to the cervical spine of sufficient severity could trigger the onset of spondylosis.

28. It was not in issue that the diving incident was an occurrence that happened while the appellant was rendering operational service. The remaining question to be determined under sub-s.120(1) was whether the disease "resulted" from that occurrence. As part of that determination the Tribunal had to consider whether it was of the opinion that the whole of the material before it failed to raise a reasonable hypothesis connecting the disease with the circumstances of the particular service rendered by the appellant.

29. Sub-section 120(1) of the Act obliges the Commission to make a determination in favour of a claimant where the claimant is a veteran who has rendered operational service unless the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for determining that the injury or disease was war-caused as defined by the Act. Sub-section 120(3) applies a statutory presumption that the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for such a determination if the Commission forms the opinion that the material presented to it does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of service, that is, with the occurrence which happened while the veteran was rendering operational service.His Honour was of the opinion that the material before the Tribunal raised two reasonable hypotheses, one connecting the injury of disease with the circumstances of service and the other denying such a connection.

30. His Honour then construed s.120 as allowing the decision-maker to elect between the competing hypotheses.

31. I am unable to agree that s.120 may be so construed.

32. The task of the Commission was reasonably clear. The Commission was obliged to consider the whole of the material before it and if unable to form an opinion that the material did not raise a reasonable hypothesis connecting the disease with the circumstance of the appellant's war service, it was obliged to determine the matter in the manner required by sub-s.120(1). In this case the relevant circumstance under sub-s.120(3) was an occurrence which happened while the veteran was rendering operational service and the reasonableness of the hypothesis was to be demonstrated by the manner of the connection of the disease with that occurrence. It was not the task of the Commission to test the strength of a reasonable hypothesis raised on the material or to compare it with an alternative or opposing hypothesis. The Tribunal was not required to determine whether the hypothesis was compelling, persuasive or attractive. It was required to do no more than ask itself whether it was of the opinion that a reasonable hypothesis was not raised by the material before it. The raising of a reasonable hypothesis does not depend upon an inference or conclusion being able to be drawn from known or proven facts. It is a supposition based upon known facts pointing the way for an investigation to discover further facts which may prove or disprove it. In the absence of all necessary facts it can be no more than a supposition but its reasonableness will depend upon the manner in which it accounts for known facts. The task of the Commission is to form the opinion, having regard to the particular facts of the claimant's case, whether the hypothesis lacks a reasonable application of theory to the circumstances. If an hypothesis lacks reasoning, logic or proper application of theory an opinion may be formed that the hypothesis is fanciful or remote and not a reasonable hypothesis in its inability to sufficiently connect the injury or disease with the circumstances of the operational service.

33. The reasons of the Tribunal did not refer to any judicial decisions that may have assisted the Tribunal in understanding the construction to be applied to s.120 of the Act but the legislative history leading to s.120 and the construction of that provision had been provided by a Full Court of this Court in East v Repatriation Commission [1987] FCA 242; (1987) 16 FCR 517 and it may be assumed that the Tribunal was aware of that decision.

34. East explained the reason for the introduction of sub-s.120(3) as an intention to retain the fundamental beneficial purpose of the legislation to provide an entitlement to a pension unless the claim was negatived beyond reasonable doubt but to limit the operation of that beneficial provision to claims in which there was some reason to believe that a causal connection existed between, inter alia, a disease and eligible war service. The Full Court described a "reasonable hypothesis" as one which was "pointed to" by the facts although not proved on the balance of probabilities. It was accepted that the sub-section maintained the acknowledgment that a reasonable doubt as to the lack of connection could be engendered by a suggestion of causal link relied upon in the absence of the proven existence of all necessary facts to show such a link but the sub-section required that the supposition, although remaining unproven, must be supported in the sense of the material before the Board providing some indicia if the supposition is to be a reasonable hypothesis within the meaning of sub-s.120(3).

35. In East at pp 532-533 the Full Court approved the following meaning of "reasonable hypothesis" as used in sub-s.120(3):

"Accordingly a connection asserted by a hypothesis to
death or incapacity and service may
theoretical, and it
least
circumstances not known to have definitely
case; or by postulating a
yet able to
unreasonable."

(See also Webb v Repatriation Commission (1988) 19 FCR 139.)

36. It is the former of those two senses that is relevant in the instant case. It was not in dispute before the Tribunal that medical science accepted that such a degenerative spinal condition could be initiated by a significant traumatic event but it was not known, in the sense of proven as likely, that such a circumstance had occurred in the appellant's case.

37. The question for the Tribunal was whether the material pointed to the occurrence of such an event thereby making the hypothetical connection between the diving incident and the onset of cervical spondylosis reasonable.

38. In that regard it was a similar task to that undertaken in Webb. In Webb it was accepted that it was medical opinion that trauma contributed to the onset of some forms of cancer. There was evidence that the veteran had been hit by a rifle butt on his upper arm in the course of his war service and had developed a sarcoma at that site some forty years later. The question for decision in that case was whether it was reasonable to link the trauma and the disease.

39. The Tribunal in its reasons for decision set out the competing opinions put forward by the orthopaedic surgeons and noted that it was Dr Whitty's opinion that the "odds against" Dr Rowden's hypothesis were "20 to 1". If the Tribunal had regard to such a comment it did not indicate the odds at which an hypothesis ceased to be reasonable.

40. The conclusions of the Tribunal were expressed in the following paragraphs:

"15. The medical evidence is, in this way, reduced to that of the

two medical officers of the respondent, the two X-ray reports and

the evidence of Dr Whitty and Dr Rowden. Of this remaining

evidence, only that of Dr Rowden favours the applicant.

16. This is one of the reasons why I do not believe that the

material before me raises a reasonable hypothesis connecting the

applicant's spondylosis with the circumstances of his service.

Other reasons include that there is no evidence to show that any of

the three occurrences upon which Mr Byrnes bases his case caused

severe injury (I regard the second two as trivial while the first

led to nothing except pain-killers and an absence from duty of

three days for observation) and that despite the existence of an

anxiety state, Mr Byrnes did not complain of nor seek medical

treatment for his spinal problems either upon discharge or for many

years thereafter.

17. All I can find in the circumstances is that there is no more

than a possibility of a causal connection between the applicant's

spondylosis and his service. Hence, a reasonable hypothesis of

such a connection has not been raised. This being the case, I am

satisfied, beyond reasonable doubt, that there is no sufficient

ground for determining that the applicant's cervical and thoracic

spondylosis was war-caused."

41. I have been unable to reconcile the Tribunal's conclusion expressed in para.15 and the first sentence of para.16 with the requirements of the Act. It appears to suggest the antithesis of the process required by the Act, namely, a requirement that the Tribunal review the facts and indicators of fact in the material placed before it, having due regard to the provisions of s.119 of the Act, in particular para.119(1)(h), and consider any medical opinions expressed in that material. It was not the task of the Tribunal to determine where a preponderance of medical evidence lay but to look at all the material including the medical evidence and ask whether it was of the opinion that that material did not raise a reasonable hypothesis connecting the disease and the circumstances of service as described in that material. (See Webb per Davies J. at p 144.)

42. Relying upon his expertise and the known facts, Dr Rowden put forward a supposition connecting the appellant's war service with his disability. The hypothesis was thoroughly credible and acceptable as far as medical principles were concerned. The remaining issue of reasonableness was whether known facts gave it some support in the sense of not obliging it to be regarded as fanciful or incredible in the given circumstances.

43. In Repatriation Commission v Bushell, Unreported (Federal Court of Australia, Full Court, 3 May 1991) at p 3 Davies J. stated the Tribunal's task as follows:

"A reasonable hpothesis will ordinarily be established if a

responsible medical practitioner, speaking within the ambit of his

expertise, and after considering the particular facts of the

veteran's case, puts forward a theory of a likely, in the sense of

a realistically possible, not fanciful, causal connection between

war service and the veteran's disability. That being done, the

s.120(1) standard of proof will apply. The veteran's claim may be

dismissed if 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. See Webb v Repatriation Commission (1988)

(19 FCR 131 at 142); Gilbert v Repatriation
[1989] FCA 31; 86 ALR 713) at 719-21. "The Tribunal's reasons reveal that the

Tribunal misunderstood the nature of the hypothesis advanced. It

was Dr Rowden's position that a trauma applying force to the

ligaments of the neck sufficient to cause ligamentous injury could

initiate degeneration of the spine and the onset of spondylosis.

Dr Rowden supported that view by drawing upon medical experience

where such consequences had resulted from episodes of whip-lash

injury. As a matter of medical principle there was no contest

between Dr Whitty and Dr Rowden in that regard. They parted

company on whether the event described by the appellant as an

occurrence in early 1943 was capable of providing an injury of that

significance. Dr Whitty's assessment of the degree of chance of

development of spondylosis as a result of the diving incident in

1943 provided no additional assistance to the Tribunal for the

opinion was founded upon his discounting of the significance of the

injury, a step acknowledged by Dr Whitty to be a "value judgement"

on his part.

44. The Tribunal was required to assess whether in the absence of definite knowledge that a significant ligamentous injury was sustained, the material before the Tribunal failed to provide a suggestion of that possibility. The material before the Board which did so point was the uncontested testimony of the appellant as to the nature and severity of the injury and the pain he suffered then and thereafter; his admission to hospital and treatment in respect thereof; and the diagnosis of cervical myositis which both Dr Whitty and Dr Rowden acknowledged was capable of including ligamentous injury. In any event, the circumstances described, namely, a twenty year old man diving from a springboard into a shallow pool and striking his head and shoulders on the floor of the pool, were capable of suggesting the likelihood of significant ligamentous injury being suffered as a result.

45. In those circumstances the formation of an opinion that the material before the Tribunal raised a reasonable hypothesis connecting the disease with the operational service rendered by the appellant appeared inevitable and the formation of a converse opinion remote. Sub-section 120(3) does not require an hypothesis raised to be reasonable by excluding any other hypothesis. To do so would negate the operation of sub-s.120(1) where the claim may only be refused if the Commission is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. Once a reasonable hypothesis is raised sub-s.120(3) has no further role to play in deeming the Commission to be satisfied beyond reasonable doubt for the purpose of sub-s.120(1). However, in combination with sub-s.120(1) it is still the task of the Commission to determine whether it is satisfied beyond reasonable doubt that no sufficient ground exists for making the determination. As was stated by Davies J. in Webb at p 142:

"Section 120(3) thus requires there to be material which

postulates a reasonable theory or hypothesis positvely connecting

the claimant's incapacity or death with his war service. But

that is not to say that s 120(1) is otiose or has no work to do.

Indeed, the legislative terms which were considered in Law's case

and O'Brien's case were re-enacted in s 120(1) after both those

decisions had been given. Section 120(1) establishes the primary

standard with respect to matters of fact, that is to say that if

there be doubt as to the existence of a crucial fact, the

claimant has the benefit of that doubt unless the non-existence

of that fact is established beyond reasonable doubt. The

requirement in s 120(3) of a reasonable hypothesis is not a

requirement that facts must be established positively in the

claimant's favour. Section 120(3) operates in the light of the

standard established by s 120(1), notwithstanding that it

requires that on the whole of the material there must be a

reasonable theory or hypothesis connecting the incapacity or

death to the war service.

Necessarily, a theory or hypothesis which is

otherwise reasonable may be dispelled or brought to

nought if there be proof beyond reasonable doubt

that one of the facts, which according to the

theory or hypothesis is essential to the connection

postulated, does not exist."

46. Paragraph 17 of the reasons of the Tribunal indicates that the Tribunal did not ask the question whether it had formed an opinion that the whole of the material, including medical opinions, was incapable of raising a reasonable hypothesis connecting a disease of gradual progression with the war service but asked the question whether it was satisfied as a matter of probability that there was a causal connection between the appellant's spondylosis and his war service. The Tribunal stated that it could find in the circumstances that there was no more than a possibility of a causal connection between the applicant's spondylosis and his service and, therefore, according to the Tribunal, a reasonable hypothesis of such a connection had not been raised.

47. That was not the task of the Tribunal. It had to form an opinion whether the whole of the material failed to raise a reasonable hypothesis. The sub-section does not require an hypothesis to be supported by proven facts or for the material to have a tendency a prove the hypothesis before an opinion may be formed that it is reasonable. It is enough if the material before the Tribunal is capable of pointing to the existence of events upon which a medical supposition relies for an hypothesis to be raised by the whole of the material and be reasonable. If it be so raised the Tribunal must then determine under sub-s.120(1) whether it is satisfied beyond reasonable doubt that there is no sufficient ground to determine that a pension is payable. In most cases the raising of a reasonable hypothesis will not permit the Tribunal to proceed to be satisfied beyond reasonable doubt that no sufficient ground exists but other facts may dispel that hypothesis in the required manner.

48. The appellant's claim was not so assessed by the Tribunal and the review proceeding conducted by the Tribunal miscarried.

49. In upholding the Tribunal's decision his Honour correctly stated that the opinion of the Tribunal as to whether a reasonable hypothesis had been raised was a question of fact which brought no right of review by the Court under s.44 of the Administrative Appeals Tribunal Act 1975 but the point of law in the appeal was that the Tribunal had misdirected itself as to its task or duty under the statute in determining that question of fact. (See Sinclair v Mining Warden at Maryborough [1975] HCA 17; (1975) 132 CLR 473 per Barwick C.J. at pp 480-481.)

50. Accordingly, the appeal from his Honour's judgment should be allowed and the decision of the Tribunal set aside. I have given consideration to whether, as a matter of law, it is open to the Tribunal to determine the appellant's claim other than in the appellant's favour and whether this Court should finally determine the matter by appropriate orders. (See Jolley v Federal Commissioner of Taxation (1989) 86 ALR 297 per Burchett and Lee JJ. at p 309; Whetton v The Repatriation Commission, Unreported (Federal Court of Australia, Full Court, 14 October 1991.) It may be said that consideration of all of the material before the Tribunal would not permit the Tribunal to form an opinion that a reasonable hypothesis connecting the disease with the war service has not been raised but the appellant has sought no more than an order that the matter be remitted to the Tribunal for decision according to law and that is the order that should be made.